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

)
)
)
)
)
)
)
)

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

Docket No. 09-415
Issued: September 30, 2009

Case Submitted on the Record

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

JURISDICTION
On November 28, 2008 appellant filed a timely appeal from March 17 and September 29,
2008 decisions regarding a wage-earning capacity determination. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether the Office properly determined that appellant’s request for
temporary total disability constituted only a request to modify a wage-earning capacity
determination. On appeal, appellant’s attorney asserts that the Office’s September 29, 2008
decision was “contrary to fact and law.”
FACTUAL HISTORY
The Office accepted that on October 13, 1994 appellant, then a 42-year-old letter carrier,
sustained a herniated L4-5 disc and aggravation of a preexisting L4-5 spondylolisthesis when he
stepped down from a step while carrying a heavy satchel of mail. On June 3, 1996 he underwent
an L4-5 anterior discectomy and on December 16, 1996 required an L4-5 interbody fusion. The

Office later accepted post-traumatic ejaculatory dysfunction as a consequence of the lumbar
surgeries.1
In February 1997, appellant accepted a permanent rehabilitation position as a modified
distribution clerk at retained pay. The assigned tasks required lifting up to 10 pounds,
intermittent sitting and standing, simple grasping and fine manipulation.
By decision dated March 17, 1999, the Office found that appellant’s actual earnings in
the modified distribution clerk position fairly and reasonably represented his wage-earning
capacity. It reduced his compensation to zero as his actual earnings equaled those of the grade
and step of his date-of-injury position.2 Appellant continued to work as a modified clerk
through 2007. He remained under medical treatment.
On December 10, 2007 appellant filed a claim for compensation (Form CA-7) for 5.76
hours on November 23, 2007. He submitted November 23 and December 11, 2007 timekeeping
forms showing that managers sent him home on November 23, 2007 as there was no work
available within his medical restrictions.
In a January 2, 2008 letter, the Office advised appellant that his claim for wage loss on
November 23, 2007 constituted a request to modify the March 17, 1999 wage-earning capacity
determination. It explained that in order to receive wage-loss compensation, he must first
establish that the wage-earning capacity determination required modification. The Office
afforded appellant 30 days to submit evidence showing the original rating was in error, his
medical condition had changed or he had been vocationally rehabilitated.
In a January 9, 2008 letter, the employing establishment stated that appellant was sent
home by management on November 23, 2007 as there was no work available within his
restrictions. The employing establishment explained that, due to automation and reduced mail
volume, there was less work available for employees with physical limitations.3
By decision dated March 17, 2008, the Office denied modification of the March 17, 1999
wage-earning capacity determination. It found that appellant had not established that the original
wage-earning capacity determination was in error, that his medical condition had changed or that
he had been vocationally rehabilitated. The Office therefore found that appellant was not
entitled to compensation “for intermittent disability on November 23 2007.”

1

The Office issued schedule awards on September 19, 2000, February 4, 2003 and April 7, 2006 for a total 21
percent impairment of the right lower extremity and 68 percent impairment of the penis.
2

On July 18, 2001 appellant, through his attorney, filed an appeal with the Board regarding a June 19, 2001
decision denying modification of a September 19, 2000 schedule award decision for impairment of the penis. This
appeal was docketed as File No. 01-2021. By order issued June 26, 2002, the Board dismissed the appeal at the
request of appellant’s attorney.
3

In a January 23, 2008 telephone memorandum, appellant noted that some of the tasks he performed since
February 1997 varied slightly from the original job description. He stated that he was able to perform these duties.

2

In a March 20, 2008 letter, appellant requested an oral hearing, held July 14, 2008. At
the hearing, appellant’s attorney asserted that the withdrawal of appellant’s light-duty job on
November 23, 2007 constituted a recurrence of disability independent of the wage-earning
capacity determination.4 The attorney emphasized that appellant was not asserting a change
either in his medical condition or in his light-duty job requirements.
By decision dated and finalized September 29, 2008, an Office hearing representative
affirmed the March 17, 2008 decision. The hearing representative found that appellant did not
submit evidence warranting modification of the March 17, 1999 wage-earning capacity
determination. Appellant did not assert or establish that the original determination was in error,
that his condition had changed or that he had been vocationally rehabilitated. The hearing
representative found that the standing wage-earning capacity decision quashed appellant’s claim
for wage-loss compensation on November 23, 2007.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination, which
remains undisturbed until properly modified.5 Modification of a standing wage-earning capacity
determination is not warranted unless there is a material change in the nature and extent of the
injury-related condition, the employee has been retrained or otherwise vocationally rehabilitated,
or the original determination was erroneous.6 The burden of proof is on the party attempting to
show a modification of the wage-earning capacity determination.7
The Office’s procedure manual provides that, if a formal loss of wage-earning capacity
decision has been issued, the rating should be left in place unless the claimant requests
resumption of compensation for total wage loss. In this instance, the claims examiner will need
to evaluate the request according to the customary criteria for modifying a formal loss of wageearning capacity.8 The Office may accept a limited period of employment-related disability
without modifying the wage-earning capacity determination.9

4

Appellant also asserted that management sent him home on January 17, 2008 as no light-duty work was
available within his restrictions. However, he did not submit evidence regarding a January 17, 2008 work absence.
The Board notes that there is no formal claim of record for wage loss on January 17, 2008. As the Office did not
issue a decision directly addressing wage-loss compensation for January 17, 2008, this issue is not before the Board
on the present appeal.
5

See Sharon C. Clement, 55 ECAB 552 (2004).

6

Sue A. Sedgwick, 45 ECAB 211 (1993).

7

Selden H. Swartz, 55 ECAB 272, 278 (2004).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995).
9

See Katherine T. Kreger, 55 ECAB 633 (2004).

3

ANALYSIS
Beginning in February 1997, appellant worked as a permanent modified distribution clerk
within the restrictions necessitated by his accepted lumbar injuries. On March 17, 1999 the
Office issued a wage-earning capacity determination based on appellant’s actual earnings as a
modified clerk. He remained in the job through 2007. On November 23, 2007 the employing
establishment sent appellant home as there was no light-duty work available that day within his
medical restrictions. Appellant filed a claim for wage loss for November 23, 2007. By decisions
dated March 17 and September 29, 2008, the Office found that he was not entitled to wage-loss
compensation because he had not established that the March 17, 1999 wage-earning capacity
required modification.
The Board finds that appellant did not establish that the March 17, 1999 wage-earning
capacity determination should be modified. As his attorney stated at the July 14, 2008 hearing,
appellant did not allege or establish a change in the accepted medical condition, his job
requirements or that he had been vocationally retrained. Therefore, appellant did not meet his
burden of proof to modify the wage-earning capacity determination.10 There remains, however,
the issue of whether appellant is entitled to wage-loss compensation on November 23, 2007 due
to a recurrence of disability.11
The Office may accept a limited period of employment-related disability without
modifying the wage-earning capacity determination.12
Appellant claimed a limited period of disability due to the temporary withdrawal of his
light-duty position on November 23, 2007. The Act’s regulations provide that withdrawal of a
light-duty assignment made specifically to accommodate an employee’s work-related physical
limitations constitutes a recurrence of disability.13 The Office, however, did not develop the
recurrence of disability issue. Therefore, the case will be remanded to the Office to determine if
appellant has established a recurrence of disability on November 23, 2007 due to the temporary
withdrawal of his light-duty position. Following this and other development deemed necessary,
the Office will issue an appropriate decision in the case.
On appeal, appellant contends that the Office’s March 17 and September 29, 2008
decisions were contrary to fact and law. As set forth above, the Office did not properly address
10

Sue A. Sedgwick, 45 ECAB 211 (1993).

11

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter
2.1500.3.b(a)(1) (May 1997). See also Philip L. Barnes, 55 ECAB 426 (2004).
12

See Katherine T. Kreger, supra note 9.

13

Title 20 C.F.R. § 10.5(x) provides: that a recurrence “also means an inability to work that takes place when a
light-duty assignment made specifically to accommodate an employee’s physical limitations due to his or her workrelated injury or illness is withdrawn (except when such withdrawal occurs for reasons of misconduct,
nonperformance of job duties or a reduction-in-force), or when the physical requirements of such an assignment are
altered so that they exceed his or her established physical limitations.” See also K.C., 60 ECAB ___ (Docket No.
08-2222, issued July 23, 2009).

4

appellant’s entitlement to wage-loss compensation for November 23, 2007. The case will be
remanded to the Office for further development.
CONCLUSION
The Board finds that the case is not in posture for a decision.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 29 and March 17, 2008 are set aside and the case
remanded for further development consistent with this decision.
Issued: September 30, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
BRONX VETERANS ADMINISTRATION
HOSPITAL, Bronx, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-241
Issued: April 3, 2015

Case Submitted on the Record

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

JURISDICTION
On November 12, 2014 appellant, through her attorney, filed a timely appeal of May 19
and August 25, 2014 Office of Workers’ Compensation Programs’ (OWCP) merit decisions.
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 the case.
ISSUES
The issues are: (1) whether OWCP properly suspended appellant’s compensation
benefits effective June 1, 2014 for failure to complete a Form CA-1032 when requested;
(2) whether appellant received an overpayment of compensation in the amount of $11,374.96 for
the period July 3, 2011 through June 28, 2014 due to the death of his dependent for which he was
not at fault; (3) whether OWCP properly denied waiver of recovery of the overpayment; and
(4) whether OWCP properly determined to collect the overpayment through withholding $100.00
from his continuing compensation benefits.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 13, 1977 appellant, then a 54-year-old medical aid, filed a traumatic injury
claim alleging that on December 12, 1977 he pulled a muscle in his lower back while removing
the carriage out of a sterilizer. OWCP accepted his claim for displacement of a lumbar disc
without myelopathy on February 10, 1978. Appellant underwent a lumbar laminectomy on
March 29, 1978. OWCP entered him on the periodic rolls. Appellant underwent additional back
surgery on March 9, 1983. OWCP terminated his compensation benefits effective May 17, 1984.
On July 8, 1986 it reinstated appellant’s compensation benefits retroactive to May 17, 1984. By
decision dated December 11, 1987, OWCP reduced his compensation benefits based on his
actual earnings as a security guard beginning January 1, 2005. Appellant married on
February 23, 1988. He underwent additional back surgeries on May 2, 1997.
Appellant completed a Form CA-1032 which included reporting any improvement in his
medical condition, any employment, any change in the status of claimed dependents, any third
party settlement, and any income or change in income from federally-assisted disability or
benefits programs on May 9, 2010 and listed his only dependent as his wife. OWCP informed
him that if the form was not completed and returned within 30 days then his benefits would be
suspended in accordance with 20 C.F.R. § 10.528. Appellant provided OWCP with a change of
address on December 2, 2010. He completed a Form CA-1032 on April 30, 2011 and listed his
wife as his only dependent. On March 7, 2012 OWCP requested that appellant complete a Form
CA-1032. Appellant completed this form on March 11, 2012 and indicated that he had no
dependents. He stated that his wife died on July 3, 2011. On March 6, 2013 OWCP requested
that appellant complete a Form CA-1032. Appellant completed this form on March 29, 2013 and
indicated that he had no dependents.
In a letter dated March 11, 2014, OWCP requested that appellant complete a Form CA1032. This form was to be completed within 30 days or appellant’s benefits would be suspended
in accordance with 20 C.F.R. § 10.528.
By decision dated May 9, 2014, OWCP suspended appellant’s compensation benefits on
the grounds that he had not completed the March 11, 2014 Form CA-1032. It noted that section
10.528 of its regulations required that he report earnings from any employment, whether full or
part time. If a timely response was not made, then the right to compensation for wage-loss
would be suspended until the report was received, at which time compensation would be restored
retroactively. OWCP suspended appellant’s compensation effective June 1, 2014. It stated, “If
you complete and return the enclosed copy of Form CA-1032, your compensation benefits will
be restored retroactively to the date they were suspended.”
Appellant submitted a Form CA-1032 dated May 7, 2014 on May 14, 2014. This form
indicated that he had no dependents. OWCP indicated that it received this form and the record
contains continuing compensation benefits.
In a preliminary determination of overpayment dated July 14, 2014, OWCP determined
that appellant had received an overpayment of compensation in the amount of $11,374.96
because his dependent spouse died on July 3, 2011. It stated that he continued to receive
compensation at the 3/4 rate through June 28, 2014. OWCP stated that appellant received

2

compensation in the amount of $94,409.63 based on the 3/4 augmented compensation rate for a
dependent, but was entitled to receive only $83,034.67 at the 2/3 compensation rate this resulted
in an overpayment of $11,374.96. It found that he was at fault in the creation of the
overpayment and directed him to complete an overpayment recovery questionnaire.
Appellant requested that OWCP make a decision on the written evidence and requested
waiver of recovery of the overpayment on July 23, 2014. He stated that he had notified OWCP
of his wife’s death and submitted her death certificate. Appellant stated that he had consistently
completed Form CA-1032’s and notified OWCP that he had no dependents after his wife’s death
which he reported on March 11, 2012.
Appellant submitted the overpayment recovery questionnaire on July 30, 2014 and listed
his monthly income as $100.00 for social security benefits, other benefits of $259.00, and FECA
benefits of $2,494.00 for total monthly income of $2,853.00. He indicated that his housing
expenses were $2,140.00 per month, his food $85.00 per month, his utilities $80.00 per month,
and miscellaneous expenses of $115.00. Appellant listed credit card debt of $3,000.00 with a
monthly payment of $150.00. He indicated that his total monthly expenses were $2,570.00.
Appellant listed his assets as a checking account balance of $4,414.00, savings account balance
of $53,062.00 and cash of $25.00 for a total of $57,501.00.
By decision dated August 25, 2014, OWCP finalized the overpayment in the amount of
$11,374.96 and found that appellant was not at fault in the creation of the overpayment. It found
that he was not entitled to waiver of recovery as his income exceeded his expenses by $254.00
per month and as he had $57,501.00 available in his savings and checking accounts. OWCP
found that appellant could make a monthly payment without undue hardship and that he had not
shown that recovery would defeat the purpose of FECA or be against equity and good
conscience. It determined to recover the overpayment by deducting $100.00 from his monthly
compensation beginning August 24, 2014.
LEGAL PRECEDENT -- ISSUE 1
FECA authorizes the Secretary of Labor to require a partially disabled employee to report
his or her earnings from employment or self-employment, by affidavit or otherwise, in the
manner and at the times the Secretary specifies.2
Under section 10.528 of OWCP’s implementing federal regulations, an employee in
receipt of compensation benefits must complete an affidavit as to any work or activity indicating
an ability to work which the employee has performed for the past 15 months.3 If an employee
who is required to file such a report fails to do so within 30 days of the date of the request, his or
her right to compensation for wage loss is suspended until OWCP receives the requested report.4
2

5 U.S.C. § 8106(b).

3

20 C.F.R. § 10.528.

4

G.W., Docket No. 13-1019 (issued August 22, 2013); Lucille A. Pettaway, 55 ECAB 228 (2004); Demetrius
Beverly, 53 ECAB 305 (2002).

3

At that time, OWCP will reinstate compensation retroactive to the date of suspension if the
employee remains entitled to compensation.
ANALYSIS -- ISSUE 1
The record establishes that on March 11, 2014 OWCP sent appellant a properly addressed
request to complete and return a Form CA-1032, providing information about his employment
and income for the prior 15 months. It explained that federal regulations required him to
complete, sign and return the form. OWCP notified appellant that, if he did not completely
answer all questions and return the signed statement within 30 days, it would suspend his
benefits.
Notwithstanding such notice, appellant did not return the completed form within 30 days
as requested. As he did not complete and sign the Form CA-1032 affidavit reporting all
employment and self-employment, as required by federal regulations, the Board finds that
OWCP properly suspended his right to compensation for wage loss under section 10.528.5 The
record indicates that appellant did submit a properly completed Form CA-1032 on May 14, 2014
and that OWCP properly reinstated his compensation benefits.
LEGAL PRECEDENT -- ISSUE 2
Section 8102 of FECA6 provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.7 When an overpayment has been made to an individual because of an error
of fact or law, adjustment shall be made under regulations prescribed by the Secretary of Labor
by decreasing later payments to which the individual is entitled.8
The basic rate of compensation paid under FECA is 66 2/3 percent of the injured
employee’s monthly pay.9 Under section 8110 of FECA, an employee is entitled to
compensation at the augmented rate of 3/4 of his or her weekly pay if he or she has one or more
dependents. A dependent means a wife if: (a) she is a member of the same household as the
employee; (b) she is receiving regular contributions from the employee for his support; or (c) the
employee has been ordered by a court to contribute to her support.10

5

Id.

6

5 U.S.C. § 8102.

7

Id. at § 8102(a); R.L., Docket No. 14-1006 (issued January 26, 2015).

8

Id. at § 8129(a).

9

Id. at § 8105(a)(2).

10

Id. at § 8110(a)(2).

4

ANALYSIS -- ISSUE 2
Appellant claimed his wife as a dependent and OWCP accordingly paid him wage-loss
compensation at the augmented rate of 75 percent. He informed OWCP of the death of his wife
on March 11, 2012 in a Form CA-1032 and indicated that he had no dependents. Appellant
stated that his wife died on July 3, 2011. In Forms CA-1032 dated March 29, 2013 and May 7,
2014, he advised that he was not married and had no dependents. The Board finds that, pursuant
to FECA, appellant had no dependents as of July 3, 2011.
The record confirms that appellant continued to receive compensation at the augmented
rate for dependents for the period July 3, 2011 through June 28, 2014. An overpayment of
compensation is therefore established. The amount of compensation actually paid during this
period, $94,409.63, less the compensation appellant should have received at the correct pay rate
and correct rate of compensation at 66 2/3 percent, $83,034.67, establishes an overpayment of
compensation in the amount of $11,374.96. Compensation payment worksheets in the record
confirm these figures. The Board will therefore affirm OWCP’s August 25, 2014 decision on the
issues of fact and amount of overpayment.
LEGAL PRECEDENT -- ISSUE 3
Section 8129(a) of FECA provides that when an overpayment of compensation occurs
“because of an error of fact of law,” adjustment or recovery shall be made by decreasing later
payment to which the individual is entitled.11 The only exception to this requirement that an
overpayment must be recovered is set forth in section 8129(b):
“Adjustment or recovery by the United States may not be made when incorrect
payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of FECA or would be against
equity and good conscience.”
Thus, a finding that appellant was without fault is not sufficient, in and of itself, for
OWCP to waive the overpayment. OWCP must exercise its discretion to determine whether
recovery of the overpayment would “defeat the purpose of FECA or would be against equity and
good conscience,” pursuant to the guidelines provided in the implementing federal regulations.
Section 10.436 of the implementing regulations12 provide that recovery of an
overpayment will defeat the purpose of FECA if recovery would cause hardship by depriving a
presently or formerly entitled beneficiary of income and resources needed for ordinary and
necessary living expenses and outlines the specific financial circumstances under which recovery
may be considered to defeat the purpose of FECA.
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
11

Id. at § 8129(a).

12

20 C.F.R. § 10.436.

5

severe financial hardship attempting to repay the debt and when an individual, in reliance on
such payments or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.13
Section 10.438(a) provides that the individual who received the overpayment is
responsible for providing information about income, expenses and assets as specified by OWCP,
as this information is needed to determine whether or not recovery of an overpayment would
defeat the purpose of FECA or be against equity and good conscience.14 This information would
also be used to determine the repayment schedule, if necessary. Section 10.438(b) provides that
failure to submit the requested information within 30 days of the request shall result in denial of
waiver.15
ANALYSIS -- ISSUE 3
OWCP determined that appellant was without fault in creating the overpayment.
Because he is without fault in the matter of the overpayment, OWCP must adjust later payments
only if adjustment would not defeat the purpose of FECA or be against equity and good
conscience. Appellant provided an overpayment recovery questionnaire which indicated that his
monthly income of $2,853.00 exceeded his monthly expenses of $2,570.00 by more than
$283.00. The Board thus finds that, as appellant’s monthly income exceeds his documented
reasonable monthly expenses by $283.00, he is not entitled to waiver of recovery as she does not
need substantially all of his income to meet current ordinary and necessary expenses.16 An
individual is deemed to need substantially all of his or her current income to meet current
ordinary and necessary living expenses if monthly income does not exceed monthly expenses by
more than $50.00.17 Appellant also indicated that he had savings and checking account balances
of $57,501.00. OWCP’s procedures provide that assets must not exceed a resource base of
$4,800.00 for an individual.18 Appellant’s assets of $57,501.00 exceed the qualifying amount for
waiver of $8,000.00 for an individual.19
Additionally, the evidence does not demonstrate that repayment of the overpayment
would be against equity and good conscience. Appellant submitted no argument that he relied
upon the incorrect payments to his detriment or that he would experience severe financial
hardship attempting to repay the debt. Consequently, OWCP properly denied waiver of recovery
of the overpayment.
13

Id. at § 10.437.

14

Id. at § 10.438(a).

15

Id. at § 10.438(b).

16

P.G., Docket No. 14-227 (issued January 9, 2015).

17

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6a(1)(a) (June 2009).
18

See 5 U.S.C. § 8116(a); 20 C.F.R. § 10.500.

19

C.P., Docket No. 14-975 (issued September 11, 2014).

6

LEGAL PRECEDENT -- ISSUE 4
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA. Section
10.441(a) of the regulations provide:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
soon as the error is discovered or his or her attention is called to same. If no
refund is made, OWCP shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the
financial circumstances of the individual and any other relevant factors, so as to
minimize any hardship.”20
ANALYSIS -- ISSUE 4
OWCP found that appellant’s monthly income exceeded his monthly compensation by
more than $200.00 per month. It stated that given his income and savings that he could repay the
overpayment through a withholding of $100.00 from his continuing monthly compensation
benefits. The Board finds that OWCP properly considered the probable extent of future
payments, the rate of compensation, the financial circumstances of appellant and any other
relevant factors, so as to minimize any hardship in determining the rate of recovery.
CONCLUSION
The Board finds that OWCP properly suspended appellant’s compensation benefits due
to his failure to timely complete the requested Form CA-1032. The Board further finds that
appellant received an overpayment of compensation in the amount of $11,374.96 for which he
was not at fault, but was not entitled to waiver. The Board also finds that OWCP properly
determined to recover the overpayment at the rate of $100.00 per month from appellant’s
continuing compensation benefits.

20

20 C.F.R. § 10.441.

7

ORDER
IT IS HEREBY ORDERED THAT the August 25 and May 19, 2014 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: April 3, 2015
Washington, DC

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

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

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

8


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

)
)
)
)
)
)
)
)

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

Docket No. 11-1486
Issued: February 8, 2012

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 June 8, 2011 appellant filed a timely appeal from a February 23, 2011 schedule award
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the schedule award decision.
ISSUE
The issue is whether appellant has more than an 18 percent impairment of the right leg
for which he received a schedule award.
On appeal, appellant’s attorney asserts that the weight of the medical evidence rests with
the opinion of appellant’s attending physician or there is a conflict in medical evidence.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On April 18, 2003 appellant, then a 41-year-old letter carrier, filed an occupational
disease claim, alleging that his employment duties caused a torn tendon in his right foot.
Dr. Harold Schoenhaus, a podiatrist, performed a right posterior tendon repair on April 23, 2003.
On September 17, 2003 he removed an implant in the right foot. In a March 30, 2004 treatment
note, Dr. Schoenhaus reported that appellant was pleased with the results of his surgery and
would be seen on an as needed basis.
On July 26, 2010 appellant filed a schedule award claim. In a May 4, 2010 report,
Dr. David Weiss, an osteopath, reviewed the medical records, appellant’s medical history and
noted his complaint of daily right foot pain with stiffness. He noted that appellant was employed
full time as a letter carrier and had difficulties in activities of daily living including climbing
stairs, going from a seated to a standing position and difficulty with prolonged driving.
Appellant had a lower extremity activity scale (LEAS) score of 11/18 or a 39 percent lower
extremity disability. Dr. Weiss provided findings on Physical Examination (GMPE) of the right
foot, noting tenderness over the posterior tibial tendon. Range of motion testing was performed
three times and dorsal and plantar flexion were diminished. Appellant had a pes planus
deformity and a “too many toe” sign. He was unable to perform a single heel raise, consistent
with a posterior tibial dysfunction. Dr. Weiss diagnosed: cumulative and repetitive trauma
disorder; posterior tibial tendon dysfunction with longitudinal tear to the right ankle; acquired
pes planus deformity to the right foot; status post right posterior tibial tendon and subtalar joint
implant to the right ankle joint in April 2003; retained painful implant to the right foot; status
post removal of implant to the right foot in September 2003; and degenerative joint disease of the
right ankle joint, by clinical impression. He rated appellant’s impairment under the sixth edition
of the A.M.A., Guides2 which was based on the history provided by appellant, GMPE,
employment duties and a review of medical records, under Table 16-2, Ankle Regional Grid,
appellant had a class 3 impairment due to a posterior tibial tendon tear with a fixed deformity or
a 34 percent impairment. Dr. Weiss stated that appellant had a net adjustment score of one
percent for Functional History (GMFH) and net adjustment scores of two each for GMPE and
Clinical Studies (GMCS). He applied the net adjustment formula, finding a net adjustment of
minus 4, which yielded a final right lower extremity impairment rating of 28 percent, with a date
of maximum medical improvement of May 4, 2010.
By report dated August 4, 2010, Dr. Arthur Berman, a Board-certified orthopedic surgeon
and OWCP medical adviser, reviewed the medical record. He found that the rating of Dr. Weiss
under Table 16-2, of a class 3 impairment, was not be appropriate because on examination
appellant had flexibility. Dr. Berman maintained that a class 2 impairment would be more
appropriate, with a flexible deformity and loss of specific tendon function, for a grade C, or a
default value of 16 percent. He offered an alternative option, under Table 16-2, of a class 1
impairment for a subtalar fusion, which he rated as class C or a 10 percent impairment.
Dr. Berman stated that appellant had net adjustment scores of 1 for GMFH, grade modifier of 2
for GMPE and grade modifier of 2 for GMCS. He applied the net adjustment formula, finding
that appellant had an adjustment of plus 2, which would increase his total right lower extremity
2

A.M.A., Guides (6th ed. 2008).

2

impairment to 18 percent and agreed that the date of maximum medical improvement was
May 4, 2010.
In an August 18, 2010 decision, appellant was granted a schedule award for an 18 percent
impairment of the right lower extremity, for a total of 51.84 weeks, to run from May 4, 2010 to
May 1, 2011. His attorney requested a hearing on August 23, 2010. At the hearing, held by
video conference on December 17, 2010, appellant testified that he was still a letter carrier. He
stated that he now delivered mail using a truck and did not do as much walking. Appellant still
had sharp pains on a daily basis, difficulty coming down stairs and had deformed toes. Counsel
argued that the opinion of Dr. Weiss should be given weight or a conflict in medical evidence
had been created.
In a February 23, 2011 decision, OWCP’s hearing representative affirmed the August 18,
2010 decision.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing federal regulations4 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.5 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides was used to calculate schedule awards.6
For decisions issued after May 1, 2009, the sixth edition is to be used.7
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).8 Under the sixth edition, for lower extremity impairments the evaluator
identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by
grade modifiers based on GMFH, GMPE and GMCS.9 The net adjustment formula is (GMFH CDX) + (GMPE - CDX) + (GMCS - CDX).10 Under Chapter 2.3, evaluators are directed to
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id. at § 10.404(a).

6

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).
7

FECA Bulletin No. 09-03 (issued March 15, 2009).

8

A.M.A., Guides, supra note 2 at 3, section 1.3, “The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.”
9

Id. at 494-531.

10

Id. at 521.

3

provide reasons for their impairment rating choices, including choices of diagnoses from
regional grids and calculations of modifier scores.11
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.12 The implementing regulations
states that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall
appoint a third physician to make an examination. This is called a referee examination, and
OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.13 When there exist opposing medical reports of virtually equal weight
and rationale and the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.14
ANALYSIS
The Board finds that a conflict in medical evidence arose regarding the degree of
impairment to appellant’s right leg. The accepted condition is right tibial tendon dysfunction
with surgical repair. In a May 4, 2010 report, Dr. Weiss advised that on GMPE appellant had
decreased dorsal and plantar flexion, a pes planus deformity, and “too many toe” sign. Under
Table 16-2, Ankle Regional Grid, appellant had a class 3 impairment due to a posterior tibial
tendon tear with a fixed deformity for a 34 percent impairment. Dr. Weiss described modifiers
and applied the net adjustment formula, finding a net adjustment of minus 4, which yielded total
impairment of 28 percent, with a date of maximum medical improvement of May 4, 2010.
Dr. Berman, OWCP’s medical adviser, disagreed with the impairment of Dr. Weiss.
impairment evaluation, because he indicated that appellant had ankle flexibility. He stated class
2 impairment would be more appropriate, with a grade C and a default value of 16 percent.
Dr. Berman also offered an alternative option, under Table 16-2, a class 1 impairment for a
subtalar fusion, which he rated as class C for a 10 percent impairment. He also applied the net
adjustment formula, indicating that appellant had an adjustment of plus 2, which would increase
his total right lower extremity impairment to 18 percent, and agreed that the date of maximum
medical improvement was May 4, 2010.
Table 16-2 provides that for a muscle/tendon impairment, a fixed deformity and loss of
specific tendon function is rated as class 3 with a C default rating of 34 percent. The table
indicates that a flexible deformity and loss of specific function is rated as class 2 with a C default

11

Id. at 23-28.

12

5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008).

13

20 C.F.R. § 10.321.

14

V.G., 59 ECAB 635 (2008).

4

rating of 16 percent.15 Dr. Weiss found a fixed deformity and Dr. Berman found a flexible
deformity.
If there is disagreement between OWCP’s medical adviser and the employee’s physician,
OWCP will appoint a third physician who shall make an examination.16 For a conflict to arise,
the opposing physician’s viewpoints must be of virtually equal weight and rationale.17 The
Board finds the opinions of Dr. Weiss and Dr. Berman to be of equal weight. As to the extent of
permanent impairment.18 The Board will set aside the February 23, 2011 schedule award
decision and remand the case for OWCP to refer appellant to an impartial medical specialist to
resolve the conflict. After such further development as it deems necessary, OWCP shall issue a
de novo decision.
CONCLUSION
The Board finds this case is not in posture for decision due to a conflict in medical
evidence.

15

A.M.A., Guides, supra note 2 at 501.

16

Supra note 12.

17

Darlene R. Kennedy, 57 ECAB 414 (2006).

18

The Board also notes that Dr. Berman’s application of the net adjustment formula contained an error. Using
Dr. Weiss modifier, (GMFH of 1 minus CDX of 2 yields -1) + (GMPE of 2 -- CDX of 2 yields 0) + (GMCS of 2 -CDX of 2 yields 0) for a net adjustment of minus , not the plus 2 found by Dr. Berman.

5

ORDER
IT IS HEREBY ORDERED THAT the February 23, 2011 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded to OWCP for proceedings
consistent with this decision of the Board.
Issued: February 8, 2012
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

6


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

)
)
)
)
)
)
)
)

Appearances:
Brad Harris, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1381
Issued: February 10, 2011

Case Submitted on the Record

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

JURISDICTION
On April 23, 2010 appellant, through his attorney, filed a timely appeal of an October 28,
2009 decision of the Office of Workers’ Compensation Programs denying further merit review.
Because over 180 days elapsed between the most recent merit decision, September 17, 2009, to
the filing of this appeal, the Board lacks jurisdiction to review the merits of his case, pursuant to
20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration on
the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board on appeal. On October 29, 1988
appellant, then a 32-year-old carrier, filed a claim alleging that he experienced low back pain on
October 17, 1988 lifting a heavy bag in the performance of duty. The Office accepted his claim
for lumbosacral strain and permanent aggravation of degenerative disc disease at L4-5 and

L5-S1. Appellant underwent anterior lumbar interbody fusion at L5. The Office granted him a
schedule award for three percent permanent impairment of each of his lower extremities on
May 25, 2000. The Board reviewed appellant’s claim and concluded that he had no more than
three percent impairment of each of his lower extremities for which he had received a schedule
award.1 The facts and the circumstances of the case as set out in the Board’s prior decision are
adopted herein by reference.
Appellant returned to work in 1998 in a light-duty position. His position changed in
2006. Appellant filed a recurrence of disability on July 27, 2007 alleging on June 28, 2007 he
stopped work due to back pain related to his accepted employment injury. By decision dated
November 14, 2007, the Office accepted his claim for recurrence of disability beginning
June 28, 2007. It entered appellant on the periodic rolls on January 28, 2008. Appellant returned
to light-duty work on July 14, 2008.
In a letter dated March 4, 2009, appellant’s attorney requested a schedule award and
submitted a report dated February 27, 2009 from Dr. Jacob Salomon a Board-certified surgeon,
who evaluated appellant’s condition using the fifth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment2 and determined that appellant had
57 percent impairment of each of his right lower extremity and 19 percent impairment of his left
lower extremity.
Appellant received disability retirement effective April 17, 2009. He elected to receive
retirement benefits effective July 4, 2009.
In a letter dated July 15, 2009, the Office explained that the sixth edition of the A.M.A.,
Guides was currently in use and requested a supplemental medical report calculating appellant’s
permanent impairment based on the appropriate sixth edition of the A.M.A., Guides. Appellant’s
attorney responded on July 15, 2009 and protested the use of the sixth edition of the A.M.A.,
Guides in this case alleging that as the Office delayed in developing his claim his schedule award
should be calculated under the fifth edition of the A.M.A., Guides. The Office responded on
July 21, 2009 again requesting additional medical evidence and noting that his impairment must
be calculated under the sixth edition of the A.M.A., Guides.
3

Appellant’s attending physician, Dr. Giri T. Gireesan, a Board-certified surgeon,
completed a note on July 1, 2009 and provided appellant’s range of motion of the neck and
lumbosacral spine. He also provided the results of muscle strength evaluations and deep tendon
reflexes, which he considered to be normal. Dr. Salomon completed a second report on
August 20, 2009 noted that appellant had significant lower back paraspinals muscle spasm and
tenderness, radiating pain while attempting to stand on both toes and mild ankle weakness. He
reviewed appellant’s diagnostic studies and found multilevel lumbosacral radiculopathy and
chronic right L5 radiculopathy as well as annular bulging of the L5-S1 disc with foraminal
1

Docket No. 02-2181 (issued December 6, 2002).

2

A.M.A., Guides (5th ed. 2000).

3

Id. at (6th ed. 2008).

2

narrowing and degenerative disc disease at L5-S1. Dr. Salomon found functional history of
chronic low back pain, abnormal sensation in both lower extremities with decreased pinprick
sensation from the right knee down to the right foot and from the left groin to the ankle
corresponding to the L5-S1 distribution. He found 16 percent deficit of the right lower extremity
and 25 deficit of the left lower extremity after applying the formula of the sixth edition of the
A.M.A., Guides.
The district medical adviser (DMA) reviewed this report on September 7, 2009 and found
that appellant was entitled to an additional three percent impairment of each lower extremity due
to impairment of the sural nerve.
By decision dated September 17, 2009, the Office granted appellant a schedule award for
an additional six percent impairment of each of his lower extremities.
Appellant requested reconsideration on October 13, 2009 by indicating with a checkmark
that he wished to pursue his appeal right of reconsideration. Counsel submitted a letter on the
same date and stated, “The [DMA] did not correctly apply the sixth edition of the A.M.A.,
Guides to the rating impairments in accordance with Dr. Saloman’s report dated
August 20, 2009.” He also stated that appellant was entitled to a rating under the fifth edition of
the A.M.A., Guides as he had timely submitted a request for schedule award and supportive
medical evidence and that the Office delayed in reaching a decision.
By decision dated October 28, 2009, the Office denied appellant’s request for
reconsideration on the grounds that his request for reconsideration did not raise substantive legal
questions or include new and relevant evidence and was therefore insufficient to warrant review
of the merits of his claim.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides in section 8128(a) that the Office
may review an award for or against payment of compensation at any time on its own motion or
on application by the claimant.4 Section 10.606(b) of the Code of Federal Regulations provides
that a claimant may obtain review of the merits of the claim by submitting in writing an
application for reconsideration which sets forth arguments or evidence and shows that it
erroneously applied or interpreted a specific point of law; advances a relevant legal argument not
previously considered by the Office; or includes relevant and pertinent new evidence not
previously considered by the Office.5 Section 10.608 of the Office’s regulations provides that
when a request for reconsideration is timely, but does meet at least one of these three
requirements, it will deny the application for review without reopening the case for a review on
the merits.6

4

5 U.S.C. §§ 8101-8193, 8128(a).

5

20 C.F.R. § 10.606.

6

Id. at § 10.608.

3

The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case. The Board has also
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case. While the reopening of a case may be predicated
solely on a legal premise not previously considered, such reopening is not required where the
legal contention does not have a reasonable color of validity.7
ANALYSIS
The Office issued a merit decision granting appellant schedule awards for six percent
impairment of each of his lower extremities on September 17, 2009. Appellant and his counsel
requested reconsideration of this decision on October 13, 2009. He did not submit any new
evidence and his attorney argued that the fifth edition of the A.M.A., Guides should apply to his
schedule award calculations and that the DMA improperly calculated his permanent impairment
in accordance with the sixth edition of the A.M.A., Guides. The Office declined to reopen
appellant’s claim for consideration of the merits on October 28, 2009. As appellant did not file
an appeal with the Board until April 23, 2010, the Board may not consider the merits of his
claim.8
As appellant submitted no new evidence, the issue before the Board is whether the Office
properly declined to reopen his claim on the grounds that he failed to submit arguments that
show that the Office erroneously applied or interpreted a specific point of law or that he failed to
advance a relevant legal argument not previously considered by the Office.
Counsel did not submit any new arguments that the Office erroneously applied or
interpreted a specific point of law. He reargued his previous contention that the fifth edition of
the A.M.A., Guides should be applied to appellant’s request for a schedule award.
The schedule award provision of the Act9 and its implementing regulations10 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. The Act, 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 the Office. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. The Office evaluates
the degree of permanent impairment according to the standards set forth in the specified edition
of the A.M.A., Guides. As of May 1, 2009, any decision regarding a schedule award must be

7

M.E., 58 ECAB 694 (2007).

8

20 C.F.R. § 501.3(f). Any notice of appeal must be filed within 180 days form the date of issuance of a decision
of the Office.
9

5 U.S.C. §§ 8101-8193, 8107.

10

20 C.F.R. § 10.404.

4

based on the sixth edition.11 As the Office’s procedure manual required the Office to apply the
sixth edition of the A.M.A., Guides, to all decisions issued after May 1, 2009, this repetitious
argument does not require the Office to reopen appellant’s claim for consideration of the merits.
In regard to counsel’s statement that the DMA failed to properly apply the sixth edition
of the A.M.A., Guides, this assertion does not rise to the level of relevant new argument as
counsel did not assert any specific or even general deficits with the DMA’s opinion. His
statement confirms appellant’s disagreement with the amount of his schedule award which was
established by the request for reconsideration. Counsel did not offer, discuss or address any
specific point of contention with the DMA’s application of the A.M.A., Guides. By merely
indicating that he preferred the rating of his physician and again suggesting that the Office
should instead rely on Dr. Salomon’s application of the A.M.A., Guides to determine appellant’s
permanent impairment, this allegation does not add any new or relevant argument to appellant’s
claim.
CONCLUSION
The Board finds that the Office properly declined to reopen appellant’s claim for
consideration of the merits on the grounds that his request for reconsideration did not set forth
arguments or evidence and show that the Office erroneously applied or interpreted a specific
point of law; advance a relevant legal argument not previously considered by the Office; or
include relevant and pertinent new evidence not previously considered by the Office.

11

Id. at § 10.404. For impairment ratings calculated on and after May 1, 2009, the Office should advise any
physician evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.0808.6.a (January 2010).

5

ORDER
IT IS HEREBY ORDERED THAT the October 28, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 10, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, LIHUE AIRPORT,
Lihue, HI, Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 13-1224
Issued: November 6, 2013

Case Submitted on the Record

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

JURISDICTION
On April 23, 2013 appellant filed a timely appeal from a March 14, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying a hearing. As the
most recent merit decision of OWCP was issued on September 16, 2010, more than 180 days
from the date of the appeal, the Board has no jurisdiction over the merits of the claim.1 Pursuant
to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to review the nonmerit decision.

1

For final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to appeal
to the Board. See 20 C.F.R. § 501.3(d)(2). For final adverse OWCP decisions issued on and after November 19,
2008, a claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for an oral hearing.
On appeal, appellant explained that financial hardship previously prevented him from
obtaining the medical evidence needed to meet his burden of proof.
FACTUAL HISTORY
OWCP accepted that on January 29, 2003 appellant, then a 49-year-old security screener,
sustained a lumbar sprain when he lifted a heavy bag. He stopped work on February 2, 2003.
Dr. Dennis R. Scheppers, an attending Board-certified family practitioner, submitted
reports from February 1 to 20, 2003 diagnosing a lumbar strain with radiculopathy. He released
appellant to restricted duty as of February 20, 2003.
Dr. Scheppers noted continued
improvement in reports through April 15, 2003, relating that appellant felt he was “back to
normal again and nearly 100 percent.” On April 21, 2003 he found that appellant’s examination
was negative, the low back pain had resolved and that he would close appellant’s case.
Dr. Scheppers stated on a June 2, 2003 report that appellant required no further treatment.
In a May 28, 2010 letter, appellant requested that OWCP reopen his compensation claim
as he was experiencing chronic pain which he attributed to the accepted injury.
In a June 3, 2010 letter, OWCP advised appellant of the additional evidence needed to
establish his claim for a recurrence of disability. It noted that Dr. Scheppers found that his
condition resolved as of April 21, 2003.
OWCP requested that appellant provide a
comprehensive medical report from his physician explaining how and why his current condition
was related to the accepted lumbar sprain. It afforded him 30 days to submit such evidence.
Appellant submitted a July 3, 2013 letter to Dr. John Mason, an attending physician,
asking him to perform the evaluation as requested by OWCP. Dr. Mason’s office administrator
stated in a July 27, 2010 letter that the evaluation would need to be scheduled at a later date as it
would take more time than allotted for his appointment.
In a July 22, 2010 letter, Dr. Scheppers opined that, on review of unspecified medical
reports, it seemed reasonable to attribute appellant’s current lumbar symptoms to the accepted
injury.
In a July 23, 2010 statement, appellant noted that, from 2003 to 2008, he performed
sedentary tasks as a social worker. He did not seek treatment for a back condition or to reopen
his claim until 2010 as he felt this would reduce his chances of promotion.3
By decision dated September 16, 2010, OWCP denied appellant’s claim for recurrence of
disability on the grounds that causal relationship was not established. It found that the medical
3

Appellant submitted grievance documents and requests for an investigation from 2004 and 2005.

2

evidence submitted was insufficient to establish that the accepted lumbar strain caused or
aggravated any medical condition in 2010.
In a letter dated and postmarked on November 28, 2012, appellant requested a hearing
before the Branch of Hearings and Review. He asserted that financial hardship and a relative’s
death rendered him unable to pay for the medical report needed to establish his claim. Appellant
submitted a claim (Form CA-2a) for a recurrence of disability commencing February 10, 2003,
and lumbar imaging studies performed on January 11, 2010 and October 12 and 22, 2012. In a
December 16, 2012 letter, he asserted that his back pain had not ceased since 2003, and that he
received ongoing treatment from nine physicians. In a February 8, 2013 letter, appellant advised
OWCP that he had an orthopedic appointment scheduled for that day to discuss lumbar surgery.
By decision dated March 14, 2013, OWCP denied appellant’s November 28, 2012
request for a hearing on the grounds that it was not timely filed within 30 days of the
September 16, 2010 decision. It exercised its discretion by performing a limited review of the
evidence and denied his request as the issue in the case could be addressed equally well pursuant
to a valid request for reconsideration.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA states unequivocally that a claimant not satisfied with a
decision of OWCP has a right, upon timely request, to a hearing before an OWCP
representative.4 Section 10.615 of Title 20 of the Code of Federal Regulations provide that a
hearing is a review of an adverse decision by an OWCP hearing representative. Initially, the
claimant can choose between two formats: An oral hearing or a review of the written record.5
A claimant is not entitled to a hearing if the request is not made within 30 days of the
date of issuance of the decision as determined by the postmark or other carrier’s date marking of
the request.6 OWCP has discretion, however, to grant or deny a request that is made after this
30-day period.7 In such a case, it will determine whether to grant a discretionary hearing and, if
not, will so advise the claimant with reasons.8
ANALYSIS
OWCP accepted that appellant sustained a lumbar sprain on January 29, 2003.
Dr. Scheppers, an attending Board-certified family practitioner, found the accepted injury
resolved completely as of April 21, 2003 and that no further treatment was necessary. On
May 28, 2010 appellant requested that OWCP reopen his claim, asserting that he had an ongoing
4

5 U.S.C. § 8124(b)(1). See A.B., 58 ECAB 546 (2007); Joe Brewer, 48 ECAB 411 (1997).

5

20 C.F.R. § 10.615.

6

Id. at § 10.616(a).

7

G.W., Docket No. 10-782 (issued April 23, 2010). See also Herbert C. Holley, 33 ECAB 140 (1981).

8

Id. See also Rudolph Bermann, 26 ECAB 354 (1975).

3

lumbar condition caused by the accepted lumbar strain. OWCP developed this request as a claim
for recurrence of disability. Appellant submitted a July 22, 2010 letter from Dr. Scheppers
finding appellant’s contentions reasonable. OWCP denied the recurrence claim by decision
dated September 16, 2010, finding the medical evidence inadequate to establish causal
relationship.
Appellant’s letter requesting a hearing was postmarked on November 28, 2012, more
than 30 days after issuance of the September 16, 2010 decision. The Board finds that OWCP
properly found that his request for an oral hearing was not timely filed under section
8124(b)(1) of FECA and that he was not entitled to a hearing as a matter of right.
OWCP then exercised its discretion and denied appellant’s request for a hearing on the
additional grounds that he could address the causal relationship issue in his case equally well by
submitting relevant evidence accompanying a valid request for reconsideration. Because
reconsideration exists as an alternative appeal right to address the issues raised by OWCP’s
decision, the Board finds that OWCP did not abuse its discretion in denying appellant’s untimely
request for an oral hearing.9
On appeal, appellant submitted new medical evidence. He asserts that this evidence is
sufficient to meet his burden of proof. As stated above, the Board does not have jurisdiction
over the merits of the case on the present appeal. Therefore, the Board is addressing only the
March 14, 2013 decision denying appellant’s request for a hearing, but not the September 16,
2010 decision denying the claim for recurrence of disability. Also, the Board may not consider
new evidence for the first time on appeal that was not before OWCP at the time it issued the final
merit decision in the case.10 As applied to this case, the Board may not consider the medical
evidence appellant submitted pursuant to his appeal. Appellant may submit this evidence to
OWCP accompanying a valid request for reconsideration.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for a hearing as
untimely.

9

See Gerard F. Workinger, 56 ECAB 259 (2005).

10

20 C.F.R. § 501.2(c).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 14, 2013 is affirmed.
Issued: November 6, 2013
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fayetteville, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-1993
Issued: March 20, 2009

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 July 15, 2008 appellant filed a timely appeal from the September 17, 2007 and
April 7, 2008 merit decisions of the Office of Workers’ Compensation Programs, which denied
his claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the
merits of the case. The Board also has jurisdiction to review the Office hearing representative’s
April 7, 2008 decision, which affirmed.
ISSUE
The issue is whether appellant sustained a lower extremity injury in the performance of
duty.
FACTUAL HISTORY
On August 7, 2007 appellant, then a 53-year-old automation clerk, filed a claim alleging
that the sharp pain and swelling in his left knee, together with his badly swollen right knee, leg
and ankle, were a result of constant movement and long periods of standing in his federal
employment. He stopped work on July 16, 2007. On July 17, 2007 appellant was given five

days’ bed rest. A magnetic resonance imaging (MRI) scan of the right knee showed only
minimal degenerative changes. An MRI scan of the left knee showed severe tricompartmental
degenerative changes, a likely chronic tear of the posterior horn and body of the medial
meniscus, a likely chronic injury to the medial collateral ligament, a significant weight-bearing
articular cartilage defect of the medial femoral condyle, small knee effusion, thinning of the
patellofemoral cartilage, and a one centimeter rounded periarticular ossific loose body in the
posterolateral soft tissues. Appellant returned to light duty on August 7, 2007.
The Office requested additional information. When appellant did not respond within 30
days, the Office issued a decision on September 17, 2007 denying his claim for compensation.
Appellant requested an oral hearing before an Office hearing representative. He
described the duties that he believed led to the problems in his lower extremities. Appellant
submitted an August 12, 2007 MRI scan of the right knee, which showed osteoarthritis with a
degenerative tear involving the posterior horn and body segments of the medial meniscus, a
chronic sprain of the medial collateral ligament, a ruptured Baker’s cyst, and abnormally
thickened lateral superior joint plicae.
After the hearing, which was held on January 29, 2008, appellant submitted the
February 11, 2008 report of Dr. Kurt P. Wohlrab, an orthopedic surgeon, who stated that
appellant was under his care for a work-related knee injury. He saw appellant after MRI scan
results showed degenerative changes of the knees with a ruptured Baker’s cyst on the right.
“This was his likely diagnosis which required him to be off work due to increased swelling and
pain associated with a meniscal tear and eventual rupture of a Baker’s cyst.” Dr. Wohlrab
reported that appellant responded well to treatment but would be a candidate for total knee
replacement in the near future. “It is my recommendation that [he] be credited for time away
from work due to his inability to perform his duties while he was being treated for acute
exacerbation of a ruptured Baker’s cyst.”
In a decision dated April 7, 2008, the Office hearing representative affirmed the denial of
appellant’s claim for compensation. She found that Dr. Wohlrab’s report failed to establish that
appellant’s knee condition was causally related to his federal employment.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of proof to establish the essential elements of his claim. When an employee claims that
he sustained an injury in the performance of duty, he must submit sufficient evidence to establish
that he experienced a specific event, incident or exposure occurring at the time, place and in the
manner alleged. He must also establish that such event, incident or exposure caused an injury.2

1

5 U.S.C. §§ 8101-8193.

2

See generally John J. Carlone, 41 ECAB 354 (1989).

2

Causal relationship is a medical issue,3 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,4 must be one of reasonable medical certainty,5
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.6
The mere fact that a condition manifests itself or worsens during a period of federal
employment raises no inference of causal relationship.7
ANALYSIS
The Office does not dispute the duties appellant performed in the course of his
employment. The issue is whether his specific duties caused an injury to his lower extremities,
as alleged.
To support the element of causal relationship, appellant submitted the February 11, 2008
note of his orthopedic surgeon, Dr. Wohlrab. However, this evidence is deficient in several
respects. Dr. Wohlrab did not describe the duties appellant performed at work. He only made a
general reference to a knee injury while working at the employing establishment. Dr. Wohlrab
failed to explain how appellant’s specific duties caused or aggravated a ruptured Baker’s cyst or
any other diagnosed medical condition. All Dr. Wohlrab really stated was that it was a ruptured
Baker’s cyst that likely kept appellant off work. The remaining diagnostic studies of record
provide no opinion on causal relation. There is no medical report which provides a probative
opinion on the issue of causal relation.8
The Office properly found that Dr. Wohlrab’s report fails to establish the critical element
of causal relationship. The Board, therefore, will affirm the Office decisions denying appellant’s
claim for compensation.

3

Mary J. Briggs, 37 ECAB 578 (1986).

4

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

5

See Morris Scanlon, 11 ECAB 384, 385 (1960).

6

See William E. Enright, 31 ECAB 426, 430 (1980).

7

Steven R. Piper, 39 ECAB 312 (1987).

8

See Donald W. Long, 41 ECAB 142, 146-47 (1989). To establish causal relationship, a claimant must submit a
physician’s report in which the physician reviews the implicated factors of employment. The physician must take
these factors into consideration, as well as findings upon examination and the claimant’s medical history. The
physician must then state whether these employment factors caused or aggravated the claimant’s diagnosed
condition and, importantly, the physician must support the opinion with medical rationale.

3

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained a lower extremity injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the April 7, 2008 and September 17, 2007
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: March 20, 2009
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

4


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

)
)
)
)
)
)
)
)

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

Docket No. 09-2128
Issued: June 7, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 18, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ nonmerit decision dated June 8, 2009 denying her reconsideration
request on the grounds that it was not timely filed and failed to establish clear evidence of error.
As the most recent merit decision was issued on April 30, 2008, the Board lacks jurisdiction to
review the merits of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.1
ISSUE
The issue is whether the Office properly determined that appellant’s request for
reconsideration was not timely filed and failed to present clear evidence of error.

1

For Office decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal of
Office decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e) (2008).

FACTUAL HISTORY
On December 6, 1995 appellant, then a 42-year-old rural mail carrier, filed a traumatic
injury claim alleging she injured her right knee when she slipped and fell while working. The
Office accepted the claim for right medial meniscus tear, arthroscopic surgeries, and right knee
extensor reconstruction and paid appropriate benefits. Appellant’s claim was later expanded for
the condition of aggravation of right knee degenerative joint disease. She returned to limited
duty September 2002 and full-time regular duty on April 3, 2003. The Office accepted that
appellant sustained a recurrence of disability beginning August 14, 2003 and she was placed
back on limited-duty work.
On February 25, 2005 the Office reduced appellant’s compensation to zero finding that
her actual earnings as a modified general clerk fairly and reasonably represented her wageearning capacity.
On September 18, 2007 appellant filed a notice of recurrence for a right ankle fracture
which occurred on August 25, 2007. She also alleged her left knee had broken cartilage due to
the excess stress she placed on it because of the injured right knee.
By decision dated April 30, 2008, the Office denied appellant’s claim for a consequential
right ankle fracture and left knee condition.
In a March 26, 2009 letter, which the Office received on May 4, 2009, appellant
requested reconsideration of the Office’s April 30, 2008 decision concerning her right ankle
fracture. The envelope containing the request was not retained in the record. In support of her
claim, appellant submitted treatment notes from August 27, 2007 to March 26, 2009 from
Christina Prauner, a nurse practitioner; treatment notes dated August 27, 2007, September 2
and 4, 2008 reports from Dr. Steven G. Kumagai, a Board-certified orthopedic surgeon; an
August 15, 2008 report from Dr. Lori K. Reed, a Board-certified orthopedic surgeon; diagnostic
studies dated March 18, 2008 to March 26, 2009 and lab testing of September 4, 2008.
By decision dated June 8, 2009, the Office denied appellant’s request for reconsideration
without a merit review, finding that she had not timely requested reconsideration and had failed
to submit evidence sufficient to establish clear evidence of error.
LEGAL PRECEDENT
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a) of the Federal Employees’ Compensation Act.2 It
will not review a decision denying or terminating a benefit unless the application for review is
filed within one year of the date of that decision.3 When an application for review is not timely
filed, the Office must nevertheless undertake a limited review to determine whether the

2

5 U.S.C. §§ 8101-8193.

3

20 C.F.R. § 10.607(b); Gladys Mercado, 52 ECAB 255 (2001).

2

application establishes “clear evidence of error.”4 Office regulations and procedure provide that
the Office will reopen a claimant’s case for merit review, notwithstanding the one-year filing
limitation set forth in 20 C.F.R. § 10.607(a), if the claimant’s application for review shows “clear
evidence of error” on the part of the Office.5
ANALYSIS
The June 8, 2009 Office decision denied appellant’s request for further review of the
merits of her claim on the grounds that her March 26, 2009 reconsideration request was untimely
filed and failed to establish clear evidence of error of the April 30, 2008 decision denying her
claim for right ankle fracture. The Board finds, however, that appellant’s reconsideration was
timely filed.
The one-year time limitation for requesting reconsideration begins to run on the date
following the date of the original Office decision.6 A right to reconsideration within one year
accompanies any merit decision on the issues.7 Office regulations and procedures provide that
timeliness for a reconsideration request is determined not by the date the Office receives the
request, but by the postmark on the envelope.8 The Office’s procedures require that an imaged
copy of the envelope that enclosed the request for reconsideration should be in the case record.
If there is no postmark, or it is not legible, other evidence such as a certified mail receipt, a
certificate of service and affidavits may be used to establish the mailing date. In the absence of
such evidence, the date of the letter itself should be used.9
The Board notes that the envelope containing the reconsideration request was not retained
in the record and the letter requesting reconsideration was dated March 26, 2009. For this reason
the Board finds that the reconsideration request dated March 26, 2009 was timely filed within
one year of the April 30, 2008 merit decision. The Office improperly denied her reconsideration
request by applying the legal standard reserved for cases where reconsideration is requested after
more than one year. Since it erroneously reviewed the evidence submitted in support of
appellant’s reconsideration request under the clear evidence of error standard, the Board will
remand the case for review of this evidence under the proper standard of review for a timely
reconsideration request.10

4

See 20 C.F.R. § 10.607(b); D.D., 58 ECAB 206 (2006); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

5

20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.3d (January 2004).
6

Federal (FECA) Procedure Manual, id. at Chapter 2.1602.3(a) (January 2004).

7

Id.; Larry J. Lilton, 44 ECAB 243 (1992).

8

See 20 C.F.R. § 10.607(a); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.3(b)(1) (January 2004).
9

Id.; see Jack D. Johnson, 57 ECAB 593 (2006).

10

See Donna M. Campbell, 55 ECAB 241 (2004).

3

CONCLUSION
The Board finds that appellant’s March 26, 2009 request for reconsideration was timely
filed.
ORDER
IT IS HEREBY ORDERED THAT the June 8, 2009 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded to the Office for further
proceedings consistent with this opinion.
Issued: June 7, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Linthicum, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Appellant, pro se1
Office of Solicitor, for the Director

Docket No. 09-1323
Issued: February 3, 2010

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 April 24, 2009 appellant filed a timely appeal from the December 4, 2008 merit
decision of the Office of Workers’ Compensation Programs, which denied an increased schedule
award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the
merits of the case.
ISSUE
The issue is whether appellant has more than a 14 percent impairment of his left upper
extremity.
1

No individual may appear as a Representative in a proceeding before the Board without first filing with the
Clerk a written authorization signed by appellant to be represented. 20 C.F.R. § 501.9(3)(b). The attorney who
submitted appellant’s appeal request form did not attach an authorization of representation. On April 29, 2009 the
Clerk of the Board allowed the attorney 30 days to file an authorization, but the attorney simply resubmitted the
appeal request form. Because this attorney has failed to file with the Clerk the authorization of representation
required by the Board’s Rules of Procedure, the Board may not recognize him as representing appellant. An appeal
request form signed by appellant having been filed, however, the appeal may move forward in a pro se status.

FACTUAL HISTORY
On November 6, 2005 appellant, then a 35-year-old transportation security screener,
sustained an injury in the performance of duty when he helped unload a cart and lifted a bag to
place on the rollers. The Office accepted his claim for “left, sprain and strain of other specified
sites of shoulder and upper arm.” Diagnosed with a left shoulder subacromial impingement, rule
out rotator cuff tear and degenerative acromioclavicular joint, appellant underwent a mini open
partial acromioplasty, rotator cuff tear repair and distal clavicle resection on August 15, 2006.
He returned to work as a program assistant on November 12, 2006 and was released from
medical care on November 27, 2006.
On February 7, 2007 Dr. Sheldon D. Milner, a Board-certified internist, related
appellant’s history and complaints. He described findings on physical examination of the left
shoulder, including 70 degrees flexion, 45 degrees extension, 90 degrees abduction, 30 degrees
adduction and 80 degrees internal and external rotation. Manual muscle testing revealed
2/5 strength compared to the right. Dr. Milner concluded that appellant had a 60 percent
impairment of the left shoulder.
On August 22, 2007 appellant filed a claim for a schedule award. To clarify the extent of
the injury-related impairment, the Office referred him, together with the medical file and a
statement of accepted facts, to Dr. Robert A. Smith, a Board-certified orthopedic surgeon.
On October 12, 2007 Dr. Smith related appellant’s history and complaints. On physical
examination, he measured 110 degrees flexion, 35 degrees extension, 110 degrees abduction,
40 degrees adduction and 60 degrees internal and external rotation. Manual muscle testing
revealed weakness in the shoulder that appeared to be related to pain rather than frank muscle
weakness, as there was no atrophy. Neurologic examination of the left upper extremity was
normal. Dr. Smith determined that appellant had an 11 percent impairment of the left upper
extremity due to loss of motion. He found it reasonable to add an additional three percent for
complaints of chronic pain and crepitation.
On November 13, 2007 an Office medical adviser rejected Dr. Milner’s estimate because
he used the wrong guidelines and did not explain how he arrived at his rating. He confirmed that
Dr. Smith’s measurements showed an 11 percent impairment of the left upper extremity due to
loss of shoulder motion. The medical adviser allowed an additional three percent for pain.
On January 17, 2008 the Office issued a schedule award for a 14 percent impairment of
appellant’s left upper extremity.
Appellant submitted an April 30, 2008 evaluation from Dr. Kenneth R. Lippman, a
Board-certified orthopedic surgeon, who related appellant’s history and complaints. On physical
examination, Dr. Lippman noted some mild loss of bulk in the supraspinatus and infraspinatus
region posteriorly. He found 90 degrees flexion with significant pain, 20 degrees extension with
less pain, 80 degrees abduction with significant pain and 10 degrees adduction. It was difficult
to place the arm in 90 degrees abduction to test external and internal rotation. With complex
internal rotation maneuvers, appellant could reach L3 on the left compared to T8 on the right.
With complex external rotation maneuvers, he could reach the lateral margin of the occiput on

2

the left compared to T2 on the rights. Strength testing showed breakaway weakness and
associated pain complaints, which he graded at 1/2 weakness of forward flexion and external
rotation. Motor testing was clouded by pain, interfering with a full objective examination.
Dr. Smith calculated that appellant had a 17.5 percent impairment of the left upper extremity due
to loss of shoulder motion. He found a 15 percent impairment due to loss of motor function in
the suprascapular and axillary nerve distributions. Dr. Smith combined these figures for a total
impairment of 29.5 percent.
On October 30, 2008 the Office medical adviser reviewed Dr. Lippman’s evaluation. He
noted there was no evidence in Dr. Smith’s or Dr. Lippman’s examination of any loss of
sensation or motor strength as a result of suprascapular nerve impairment. The medical adviser
rejected Dr. Lippman’s rating of 15 percent based on suprascapular nerve injury. He added:
“The motion impairment calculation that I used was based upon multiple prior examinations and
I believe that the weight of the medical evidence has been previously presented by multiple other
physicians in regard to range of motion.” The Office medical adviser therefore found no basis to
change appellant’s previous rating of 14 percent.
In a decision dated December 4, 2008, the Office denied an increased schedule award.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act2 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).3
As with any biological measurements, some variability and normal fluctuations are
inherent in permanent impairment ratings. Two measurements made by the same examiner using
the A.M.A., Guides that involve an individual or an individual’s functions would be consistent if
they fall within 10 percent of each other. Measurements should also be consistent between two
trained observers or by one observer on two separate occasions, assuming the individual’s
condition is stable.4
ANALYSIS
The Office issued a schedule award for a 14 percent impairment of appellant’s left upper
extremity based on the October 12, 2007 evaluation by Dr. Smith, an orthopedic surgeon and
Office referral physician, whose goniometric findings supported an 11 percent impairment due to
loss of shoulder motion. Flexion of 110 degrees is a five percent impairment and extension of 35
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

A.M.A., Guides 20 (5th ed. 2001).

3

is a one percent impairment.5 Abduction of 110 degrees is a three percent impairment and
adduction of 40 degrees is no impairment.6 Internal rotation of 60 degrees is a two percent
impairment and external rotation of 60 degrees is no impairment.7
Following Dr. Smith’s evaluation, Dr. Lippman, an orthopedic surgeon, reported a 14
percent impairment of the left upper extremity due to loss of shoulder motion. Flexion of 90
degrees is a six percent impairment and extension of 20 is a two percent impairment. Abduction
of 80 degrees is a five percent impairment and adduction of 10 degrees is a one percent
impairment.8 The Office medical adviser believed that the weight of the medical evidence was
previously presented by multiple other physicians in regard to range of motion, but he did not
adequately explain this observation. He gave no rationale for discounting Dr. Lippman’s clinical
findings on range of motion, which were the most recent clinical findings in the record and
which showed greater impairment of the left upper extremity.
The Board finds that further development is warranted. The Board will set aside the
Office’s December 4, 2008 decision denying an increased schedule award and remand the case
for clarification from an Office medical adviser, who shall review the range of motion findings
reported by Dr. Milner, Dr. Smith and Dr. Lippman and address whether the measurements are
reasonably consistent, whether appellant’s shoulder condition is stable or whether a appellant has
impairment for the excision of his distal clavicle on August 15, 2006. In the presence of
decreased motion, motion impairments are derived separately and may be combined with
arthroplasty impairment.9 Table 16-27, page 506 of the A.M.A., Guides states that a resection
arthroplasty of the distal clavicle is a 10 percent impairment of the upper extremity.
Dr. Smith found it reasonable to add an additional three percent for complaints of chronic
pain and crepitation and the Office awarded such. However, the pie charts for impairment due to
lack of shoulder motion and the table for impairment due to arthroplasty already account for any
accompanying pain.10 Chapter 18, which pertains to pain-related impairment, should not be
redundant of or inconsistent with principles of impairment rating described in other chapters. If
an examining physician determines that an individual has pain-related impairment, he or she will
have the additional task of deciding whether or not that impairment has already been adequately

5

Id. at 476 (Table 16-40).

6

Id. at 477 (Table 16-43).

7

Id. at 479 (Table 16-46). Because the relative upper extremity value of each shoulder functional unit has been
taken into consideration in the impairment pie charts, the impairment values contributed by each unit of motion are
added to determine the impairment of the upper extremity due to abnormal shoulder motion. Id. at 479.
8

Id. at 477 (Table 16-43). Because of difficulty-placing appellant’s arm in 90 degrees abduction to test external
and internal rotation, Dr. Lippman’s clinical findings do not properly support an impairment rating for those
shoulder functions under Figure 16-46, page 479 of the A.M.A., Guides.
9

Id. at 505

10

Id. at 20 (the impairment ratings in the body organ system chapters make allowance for any accompanying
pain).

4

incorporated into the rating the person has received on the basis of other chapters of the A.M.A.,
Guides.11
Neither Dr. Smith nor the Office medical adviser explained why the impairment ratings
for shoulder motion (or the impairment rating for arthroplasty) do not adequately encompass
appellant’s pain.12 In the absence of rationale, no rating for pain-related impairment is
supported.
Dr. Milner offered an impairment rating of 60 percent, but he did not refer to the fifth
edition of the A.M.A., Guides and did not explain how he calculated this rating.13 Dr. Lippman
offered a 15 percent rating for loss of motor function in the suprascapular and axillary nerve
distributions, but he did not explain how this was consistent with appellant’s “breakaway”
weakness on examination or Dr. Smith’s observation that weakness in the shoulder appeared to
be related to pain rather than frank muscle weakness. He also did not show how he applied
Table 16-15, page 492 and Table 16-11, page 484, to arrive at his rating of 15 percent. For these
reasons, the Board finds that the Office properly discounted these ratings.
After obtaining clarification from an Office medical adviser and after such further
development of the evidence as may be necessary, the Office shall issue an appropriate final
decision on appellant’s entitlement to an increased schedule award.
CONCLUSION
The Board finds that this case is not in posture for decision. Further, development is
warranted.

11

Id. at 570.

12

The A.M.A., Guides notes that crepitation is an inconsistent finding that depends on such factors as forces on
joint surfaces and synovial fluid viscosity. Id. at 544 (arthritis impairments in the lower extremities).
13

Manual muscle testing is subject to an individual’s conscious or unconscious control and individuals whose
performance is inhibited by pain or fear of pain may not be good candidates for this testing. Id. at 509.

5

ORDER
IT IS HEREBY ORDERED THAT the December 4, 2008 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this opinion.
Issued: February 3, 2010
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

6