United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.Y., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, HEALTH RESOURCES &
SERVICES ADMINISTRATION, Bethesda, MD,
Employer
__________________________________________

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

Docket No. 18-0730
Issued: August 21, 2019

Case Submitted on the Record

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

JURISDICTION
On February 20, 2018 appellant filed a timely appeal from a January 11, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 11, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
FACTUAL HISTORY
On October 25, 1999 appellant, a 34-year-old office automation clerk, filed a traumatic
injury claim (Form CA-1) alleging that she sustained a neck and back injury on October 21, 1999
as a result of moving conference tables and chairs for a meeting while in the performance of duty.
By decision dated February 1, 2000, OWCP accepted the claim for cervical and lumbar sprains.
It later expanded the claim to accept the additional conditions of displacement of lumbar
intervertebral disc disorder without myelopathy. Appellant was placed on the periodic
compensation rolls effective September 8, 2002.
On August 25, 2012 appellant filed a claim (Form CA-7) for a schedule award.
In an August 31, 2012 development letter, OWCP advised appellant of the deficiencies of
her claim and requested medical evidence containing a detailed description of her permanent
impairment specific to the accepted work-related condition(s), a date of maximum medical
improvement (MMI), final rating of permanent impairment, and a discussion of the rationale for
calculation of the impairment under the sixth edition of the American Medical Association, Guides
to the Evaluation of Permanent Impairment (A.M.A., Guides).3
In response, appellant submitted reports dated July 30, September 5 and 20, and October 1
and 22, 2012 from Dr. Jose Suros, a physician specializing in pain medicine and neurology, who
diagnosed lumbar spinal stenosis and noted her history of a fall, as well as the October 21, 1999
employment injury. Dr. Suros further diagnosed “lumbar radiculopathy, degenerative lumbar
spine” and performed L4-5 epidural steroid injections. He also diagnosed “spinal headache, dural
leakage” and performed an L4-5 epidural blood patch under fluoroscopy on October 1, 2012.
By decision dated November 6, 2012, OWCP denied appellant’s schedule award claim
finding that she had not submitted medical evidence to establish permanent impairment causally
related to an accepted condition in her claim.
On November 18, 2012 appellant requested an oral hearing before a representative of the
Branch of Hearings and Review.
A telephonic hearing was held on March 27, 2013. Appellant provided testimony and
OWCP’s hearing representative held the case record open for 30 days for the submission of
additional evidence on the issue of permanent functional impairment.
Appellant subsequently submitted reports dated April 10 and May 22, 2013 from
Dr. Christopher M. Magee, a Board-certified orthopedic surgeon, who diagnosed bilateral leg pain
posteriorly and cervical and lumbosacral strain with cervical radiculopathy. Dr. Magee opined
3

A.M.A., Guides (6th ed. 2009).

2

that these conditions were causally related to her work-related injury of October 21, 1999 and
advised that she was totally disabled for work. He opined that appellant had reached MMI and
had 19 percent whole body impairment.
By decision dated June 18, 2013, OWCP’s hearing representative vacated the prior
decision and remanded the case for further medical development.
In an August 21, 2013 report, Dr. Magee opined that appellant had reached MMI with
regard to her October 21, 1999 work injury. He indicated that he had utilized the sixth edition of
the A.M.A., Guides to determine that her diagnoses of chronic soft tissue derangement and spinal
stenosis resulted in 10 percent whole-body impairment related to her cervical spine and 10 percent
whole-body impairment related to her lumbar spine. Dr. Magee calculated that the combined value
of her cervical and lumbosacral spine impairments was 19 percent whole-body impairment based
on page 592 of the A.M.A., Guides. He indicated that Table 17-4 showed a class 2 impairment of
12 percent related to a sprain with foraminal narrowing and disc protrusion. Dr. Magee opined
that the pain in appellant’s extremities was not primarily related to injury to her upper or lower
extremities, but reflected referred pain from her neck and lower back. He determined that there
was no additional ratable impairment for her upper or lower extremities related to her work injury
of October 21, 1999.
OWCP referred appellant to Dr. Robert F. Draper, a Board-certified orthopedic surgeon,
for a second opinion evaluation to determine the nature and extent of her permanent impairment
due to her accepted employment-related conditions. In his November 21, 2014 report, Dr. Draper
reviewed a statement of accepted facts (SOAF) and the medical evidence of record, and noted the
history of injury. He conducted a physical examination and found that an examination of the motor
function in the upper extremities revealed that appellant had +5 in all muscles tested and +1 in all
reflexes tested. Motor functions in the lower extremities demonstrated +5 in all muscles tested
and +2 in all reflexes tested. Light touch sensation was tested and found to be normal in all body
areas tested. Dr. Draper concluded that appellant had degenerative changes involving the cervical
and lumbar spine which were not causally related to the accepted employment injury. He
determined that she had reached MMI and was capable of performing light-duty work with a
restriction of lifting no more than 20 pounds occasionally and 10 pounds frequently. Dr. Draper
concluded that appellant did not have clinical physical examination evidence for a neurological
impairment to the lower extremities. He found no evidence for lumbar radiculopathy based on his
examination and consequently no impairment rating for the lower extremities based on the A.M.A.,
Guides.
On January 2, 2015 Dr. Arnold T. Berman, a Board-certified orthopedic surgeon serving
as an OWCP medical adviser (DMA), reviewed the medical evidence of record and concurred with
Dr. Draper’s assessment that appellant had reached MMI and had a zero percent permanent
impairment of the bilateral lower extremities.
By decision dated January 6, 2015, OWCP denied appellant’s schedule award claim
finding that the medical evidence failed to establish a ratable impairment of a scheduled member.
On June 16, 2015 Dr. Phillip Omohundro, a Board-certified orthopedic surgeon, indicated
that appellant’s prognosis was poor and diagnosed cervical disc disorder, cervical radiculopathy,

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lumbar radiculopathy, and degeneration of lumbosacral intervertebral disc. He opined that she had
5 percent permanent impairment of the body as a whole due to her cervical spine injury and 6
percent permanent impairment of the body as a whole due to her lumbar spine injury, for a
combined value of 11 percent permanent impairment to the body as a whole.
On September 1, 2017 appellant again filed a claim (Form CA-7) for a schedule award.
In a September 20, 2017 report, Dr. Magee reiterated his opinion that appellant had reached
MMI and had 10 percent whole body permanent impairment.
In an October 11, 2017 development letter, OWCP advised appellant of the deficiencies of
her schedule award claim and afforded her 30 days to submit additional evidence and respond to
its inquiries.
On November 28, 2017 Dr. Omohundro diagnosed degeneration of lumbar intervertebral
disc, cervical trigger point syndrome, degeneration of cervical intervertebral disc, lumbosacral
radiculitis, and contusion of rib.
In reports dated November 29 through December 11, 2017, Dr. Magee diagnosed neck
pain and lumbar radiculopathy.
OWCP referred appellant to Dr. Matthew L. Drake, a Board-certified orthopedic surgeon,
for a second opinion evaluation to determine the nature and extent of the permanent functional
impairment due to her accepted employment-related conditions. In his December 13, 2017 report,
Dr. Drake reviewed a SOAF and the medical evidence of record, and noted her history of injury.
He conducted a physical examination and found that under no circumstances were appellant’s
current condition and complaints related to the employment injury of 1999. Dr. Drake noted that
she had sustained cervical lumbar strains at that time and there were benign soft tissue conditions
which would have resolved within a matter of weeks. He indicated that appellant’s magnetic
resonance imaging (MRI) scan showed evidence of a mild disc bulge at the L4-5 level, but opined
that this was an incidental age-related finding with no relationship to the injury in question.
Dr. Drake concluded that she was at a preinjury status approximately six to eight weeks after the
event in 1999. He determined that ongoing medical treatment was not needed because appellant’s
cervical and lumbar strains had long since resolved and MRI scan findings of the lumbar disc were
incidental in nature and had no evidence of radiculopathy. Dr. Drake further indicated that her
nerve studies showed no evidence of radiculopathy. He observed that appellant’s case was highly
characterized by subjective pain complaints and he advised that she was not disabled and could
return to her preinjury employment position without restrictions. Dr. Drake concluded that her
back condition was not causing consequential injuries because she had a lumbar strain which had
resolved. He opined that if appellant was falling, it was not related to a lumbar strain or a lumbar
disc displacement. Dr. Drake determined that there was no basis for a rating of permanent
impairment because she had only subjective complaints, her diagnostic imaging was benign, and
her nerve studies were normal.
In a December 14, 2017 report, Dr. Magee diagnosed lumbar radiculopathy and cervical
spondylosis with radiculopathy and revised his opinion to find that appellant had three percent
whole person impairment.

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On December 29, 2017 Dr. Kim Hoang, a Board-certified anesthesiologist and pain
management specialist, diagnosed low back pain, lumbar spondylosis, chronic pain syndrome, and
displacement of lumbar intervertebral disc without myelopathy.
On January 10, 2018 Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving
as a DMA, reviewed the medical evidence of record and found that Dr. Magee’s impairment
evaluation could not be considered probative for schedule award purposes under FECA because it
lacked sufficient detail to permit assignment of an impairment rating on the basis of a records
review. He explained that Dr. Magee’s rating was based on whole person impairment, which was
improper because cervical and lumbar spine regional grids could not be considered as there was
no definitive radicular findings and the spine itself was not eligible for a schedule award. The
DMA further noted no verifiable findings of radiculopathy of record. He concurred with
Dr. Drake’s findings and concluded that appellant had no spinal nerve impairment of the upper or
lower extremities based on the medical evidence of record. The DMA determined that she had
reached MMI on December 13, 2017, the date of Dr. Drake’s second opinion evaluation.
By decision dated January 11, 2018, OWCP denied appellant’s schedule award claim
finding that she had not met her burden of proof to establish, through the medical evidence of
record, a ratable impairment of a scheduled member.
LEGAL PRECEDENT
The schedule award provision of FECA,4 and its implementing federal regulations,5 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.6 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.7
Neither FECA nor its regulations provide for a schedule award for impairment to the back
or to the body as a whole.8 Furthermore, the back is specifically excluded from the definition of
organ under FECA.9 The sixth edition of the A.M.A., Guides does not provide a separate
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter
3.700.2 and Exhibit 1 (January 2010).
8

See L.L., Docket No. 19-0214 (issued May 23, 2019); N.D., 59 ECAB 344 (2008); Tania R. Keka, 55 ECAB
354 (2004).
9
See 5 U.S.C. § 8101(19); see also G.S., Docket No. 18-0827 (issued May 1, 2019); Francesco C. Veneziani, 48
ECAB 572 (1997).

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mechanism for rating spinal nerve injuries as impairments of the extremities. Recognizing that
FECA allows ratings for extremities and precludes ratings for the spine, The Guides Newsletter,
Rating Spinal Nerve Extremity Impairment Using the Sixth Edition (July/August 2009) (The
Guides Newsletter) offers an approach to rating spinal nerve impairments consistent with sixth
edition methodology. For peripheral nerve impairments to the upper or lower extremities resulting
from spinal injuries, OWCP procedures indicate that The Guides Newsletter is to be applied.10 The
Board has recognized the adoption of this methodology for rating extremity impairment, including
the use of The Guides Newsletter, as proper in order to provide a uniform standard applicable to
each claimant for a schedule award for extremity impairment originating in the spine.11
The claimant has the burden of proof to establish that the condition for which a schedule
award is sought is causally related to his or her employment.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
OWCP properly referred appellant to Dr. Drake for a second opinion evaluation to
determine the nature and extent of any permanent functional impairment due to her accepted
employment-related conditions. In his December 13, 2017 report, Dr. Drake found that her nerve
studies showed no evidence of radiculopathy and her presentation was highly characterized by
subjective pain complaints. He noted that appellant had sustained cervical lumbar strains at that
time and there were benign soft tissue conditions, which would have been resolved within a matter
of weeks. Dr. Drake indicated that her MRI scan showed evidence of a mild disc bulge at the L4-5
level, but opined that this was an incidental age-related finding with no relationship to the injury
in question. He determined that there was no basis for an impairment rating because appellant had
only subjective complaints, her diagnostic imaging was benign, and her nerve studies were normal.
The Board finds that Dr. Drake’s opinion represents the weight of medical evidence.
In accordance with its procedures, OWCP properly referred the evidence of record to its
DMA, Dr. Katz, who found that the impairment evaluation of the attending physician, Dr. Magee,
could not be considered probative for the purpose of recommending a schedule award under FECA
because it lacked sufficient detail to permit assignment of an impairment rating on the basis of a
records review. The DMA concurred with Dr. Drake’s findings and concluded that appellant had
no spinal nerve impairment of the upper or lower extremities based on the medical evidence of
record.
The Board finds that the DMA applied the appropriate tables and grading schemes of the
sixth edition of the A.M.A., Guides to Dr. Drake’s clinical findings. His calculations were
mathematically accurate. There is no medical evidence of record utilizing the appropriate tables
10

Supra note 7 at Chapter 3.700 (January 2010). The Guides Newsletter is included as Exhibit 4.

11

See E.D., Docket No. 13-2024 (issued April 24, 2014); D.S., Docket No. 13-2011 (issued February 18, 2014).

12

See G.S., supra note 9; Veronica Williams, 56 ECAB 367 (2005).

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of the sixth edition of the A.M.A., Guides demonstrating a percentage of permanent impairment.
The DMA explained that Dr. Magee’s rating was based on a whole person impairment, which was
improper because cervical and lumbar spine regional grids could not be considered as there was
no definitive radicular findings and the spine itself was not eligible for a schedule award. He
further noted that no verifiable findings of radiculopathy were noted. The Board finds that the
DMA in this case properly applied the standards of the A.M.A., Guides and OWCP properly relied
on his assessment of zero percent permanent impairment of the right and left upper extremity and
zero percent permanent impairment of the right and left lower extremity.13
Dr. Magee and Dr. Omohundro provided a rating for whole person impairment. There is
no statutory basis for the payment of a schedule award for whole body impairment under FECA.14
Payment is authorized only for the permanent impairment of specified members, organs, or
functions of the body.15 For these reasons, the Board finds that the opinions of Drs. Magee and
Omohundro are of limited probative value and insufficient to establish that appellant is entitled to
a schedule award.
Appellant has submitted no other current medical evidence in conformance with the sixth
edition of the A.M.A., Guides, or The Guides Newsletter, addressing how she has a ratable
permanent impairment of a scheduled body member. Accordingly, the weight of the medical
opinion evidence is accorded Dr. Drake’s September 22, 2016 second opinion report and the report
of the DMA.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.

13

See id.

14

See N.H., Docket No. 17-0696 (issued July 19, 2017).

15

Tania R. Keka, 55 ECAB 354 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the January 11, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 21, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.W., Appellant
and
U.S. POSTAL SERVICE, ALBERT THOMAS
STATION, Houston, TX, Employer
__________________________________________

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

Docket No. 19-0786
Issued: September 18, 2019

Case Submitted on the Record

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

JURISDICTION
On February 27, 2019 appellant filed a timely appeal from a December 21, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated July 10, 2018, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 21, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 18, 2018 appellant, then a 23-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that on January 13, 2018 she suffered a low back strain when
she reportedly felt her back lock up when she kneeled down to place a package on a porch while
in the performance of duty. On the reverse side of the claim form, the employing establishment
indicated that she was in the performance of duty when injured and that she had received medical
treatment on January 13, 2018. Appellant initially sought medical treatment at the emergency
room and was released to work on January 15, 2018.
Appellant received medical treatment from Dr. Novarro C. Stafford, specializing in family
medicine. In a February 23, 2018 report, Dr. Stafford described the January 13, 2018 employment
injury and her history. Upon examination of appellant’s back, he observed abnormal curvature,
decreased range of motion, and positive tenderness. Dr. Stafford diagnosed lumbar strain, lumbar
intervertebral disc displacement, lumbar radiculopathy, and sciatica. He reported that, at the time
of the January 13, 2018 injury, appellant developed “an acute disability secondary to an acute
injury” and recommended that she remain off work. Dr. Stafford completed a work status note
and duty status report (Form CA-17), which indicated that she should be excused from work from
February 23 to March 24, 2018 due to being “totally incapacitated and unable to perform normal
job duties.”
On February 26, 2018 OWCP accepted appellant’s claim for lower back strain.
Dr. Stafford continued to treat appellant and provide medical reports dated March 9 to
April 6, 2018 regarding his treatment for her January 13, 2018 work-related back injury. He
provided examination findings and diagnosed acute lumbar sprain, sciatica, and radiculopathy of
the lower extremities. Dr. Stafford opined that appellant “developed an acute disability secondary
to an acute injury” in her lumbar spine.
Appellant also received medical treatment from Dr. Kenneth Lee, an orthopedic surgeon.
In an April 3, 2018 report, Dr. Lee related her complaints of low back and leg pain following a
January 13, 2018 work injury. He provided examination findings and diagnosed lumbar
intervertebral disc displacement and low back pain.
On April 16, 2018 appellant filed a claim for wage-loss compensation (Form CA-7) for the
period February 28 to June 25, 2018. On the reverse side of the claim form, the employing
establishment verified that she was in leave without pay status for 180 hours. Appellant filed
additional CA-7 form claims for compensation for wage-loss due to continuing total disability.
By development letter dated May 16, 2018, OWCP informed appellant of the evidence
needed to support her disability claim.

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OWCP received additional medical reports by Dr. Stafford dated May 9 to 24, 2018.
Dr. Stafford discussed appellant’s history of the January 13, 2018 employment injury. He
reiterated physical examination findings of abnormal curvature of her back, decreased range of
motion, and positive tenderness. Dr. Stafford continued to opine that appellant “developed an
acute disability secondary to an acute injury” and still had significant disability associated with
her injury.
By decision dated July 10, 2018, OWCP denied appellant’s claim for wage-loss
compensation beginning February 28, 2018, finding that the evidence of record was insufficient to
establish that she was unable to work during the claimed period due to her January 13, 2018
employment injury.
Following its decision, OWCP received reports dated July 6 to August 15, 2018 by
Dr. Stafford. Dr. Stafford described the January 13, 2018 employment injury and discussed
appellant’s history. He diagnosed low back pain, lumbar strain, lumbar sciatica, lumbar herniated
nucleus pulposus (HNP), and lumbosacral radiculopathy. Dr. Stafford reported that appellant
continued to have disability associated with her lumbar back area.
In reports and letters dated August 15 to September 15, 2018, Dr. Stafford indicated that
appellant’s injury was more than a lumbar sprain. He related that diagnostic testing confirmed that
she had herniation in her lumbar back at L1-2 and L5-S1 and nerve compression at L4-5.
Dr. Stafford opined that these conditions were causally related to the initial injury. He requested
that appellant’s claim be expanded to include herniation of the lumbar spine, radiculopathy of the
lower extremities, and polyneuropathy of the plantar portion of her feet, and sciatica of the left
side of her lower extremities. Dr. Stafford further recommended that she remain out of work and
indicated that appellant’s disability was causally related to her lumbar injury.
In a September 4, 2018 report, Dr. Lee related appellant’s complaints of intermittent low
back pain. He reviewed her history and reported physical examination findings of pain to palpation
in the midline and paraspinal regions of her lumbar spine. Range of motion was decreased with
forward flexion. Dr. Lee diagnosed lumbar disc displacement, low back pain, and lumbar
radiculopathy.
In a September 18, 2018 report, Dr. Ajay Aggarwal, a Board-certified anesthesiologist,
noted appellant’s chief complaint of lower back pain after a January 13, 2018 employment injury.
He provided neurological examination findings of the upper and lower extremities. Facet joint
tenderness was positive on the right and left side at L5-S1. Dr. Aggarwal diagnosed lumbar strain.
OWCP also received several physical therapy referrals and treatment notes dated
January 13 to September 27, 2018 and duty status reports (Form CA-7) dated February 23 to
August 24, 2018.
On October 3, 2018 appellant requested reconsideration.
Appellant continued to submit reports by Dr. Stafford dated September 28 to
December 19, 2018. Dr. Stafford reviewed her history of injury and noted that she still had limited
ability to bend at the back and intermittent back spasms. He reported that appellant’s ability was
improving, but she was still not able to return to work. Dr. Stafford noted that she could only sit
3

for one hour before she had to stand up and walk around. He diagnosed lower back pain, sciatica,
lumbosacral radiculopathy, lumbar HNP, and lumbar strain. Dr. Stafford completed duty status
reports (Form CA-7), which indicated that appellant was not able to return to work.
In a November 5, 2018 report, Dr. Shabrez Tariq, Board-certified in physical, and
rehabilitation medicine, indicated that he evaluated appellant for a lumbar spine injury that she
sustained while employed as a mail carrier. He related her complaints of back pain aggravated
with sudden turning, carrying objects, and prolonged standing, sitting, and walking. Upon
examination of appellant’s lumbar spine, Dr. Tariq observed tenderness to palpation of the
paraspinal musculature and tenderness present at trigger points. Straight leg raise testing was
positive. Dr. Tariq diagnosed lumbar strain, lumbar facet joint syndrome, lumbago, lumbar disc
displacement without myelopathy, and industrial accident.
OWCP also received physical therapy referrals and evaluation reports dated September 27
to December 6, 2018.
By decision dated December 21, 2018, OWCP denied further merit review of appellant’s
claim under 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.3
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a
specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.4
A request for reconsideration must also be received by OWCP within one year of the date
of OWCP’s decision for which review is sought.5 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.6 If the request is timely but fails to meet at least one
of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.7

3

5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

4
20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
5

Id. at § 10.607(a).

6

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

7

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

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ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
Appellant did not submit any statement along with her October 3, 2018 reconsideration
request explaining why she disagreed with the July 10, 2018 merit decision. She has not shown
that OWCP erroneously applied or interpreted a specific point of law, nor did she advance a
relevant legal argument not previously considered. Thus, the Board finds that appellant is not
entitled to a review of the merits of her claim based on the first and second above-noted
requirements under section 10.606(b)(3).
The Board further finds that appellant did not submit relevant and pertinent new evidence
not previously considered.
Following its most recent merit decision, OWCP received additional reports, letters, and
CA-17 forms by Dr. Stafford dated July 6 to December 19, 2018. Dr. Stafford reviewed
appellant’s history of injury and described his continued treatment of her for her diagnosed low
back pain, lumbar strain, lumbar sciatica, lumbar HNP, and lumbosacral radiculopathy conditions.
He further reported that, although her back pain and disability were improving, she continued to
have disability associated with her lumbar back area. The Board finds, however, that these reports
are substantially similar to Dr. Stafford’s prior medical reports, which were previously reviewed
and considered by OWCP. Dr. Stafford did not provide any new or relevant evidence explaining
how appellant’s inability to work beginning February 28, 2018 was causally related to her
January 13, 2018 lumbar strain injury. The Board has held that the submission of evidence which
duplicates or is substantially similar to evidence already in the case record does not constitute a
basis for reopening a case.8
In a September 4, 2018 report, Dr. Lee provided physical examination findings of
appellant’s lumbar spine and diagnosed lumbar disc displacement, low back pain, and lumbar
radiculopathy. He did not, however, provide an opinion or discussion regarding whether her
disability from work beginning February 28, 2018 was causally related to her January 13, 2018
employment injury. The Board notes that the submission of evidence that does not address the
particular issue involved does not constitute a basis for reopening a case.9 Likewise,
Dr. Aggarwal’s September 18, 2018 and Dr. Tariq’s November 5, 2018 reports are also not
relevant to the issue of appellant’s disability as neither physician provided an opinion on her
inability to work during the claimed period.10 Accordingly, appellant is not entitled to a review of

8

S.W., Docket No. 18-1261 (issued February 22, 2019); E.M., Docket No. 09-0039 (issued March 3, 2009); D.K.,
59 ECAB 141 (2007).
9

M.B., Docket No. 17-1980 (issued May 14, 2019); E.G., Docket No. 18-0270 (issued August 24 2018); Alan G.
Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).
10

Id.

5

the merits of her claim based on the third above-noted requirement under 20 C.F.R. § 10.606(b)(3).
Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.11
On appeal appellant alleges that she should have not been denied disability because the
diagnostic testing and narrative information established her disability. As explained above,
however, the Board lacks jurisdiction to review the merits of the claim. The only decision properly
before the Board on this appeal is the December 21, 2018 nonmerit decision, which denied
appellant’s request for further merit review.
As appellant’s request for reconsideration did not meet any of the three requirements
enumerated under 20 C.F.R. § 10.606(b)(3), the Board finds that OWCP properly denied her
request for reconsideration without reopening the case for review on the merits.12
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

11

See F.P., Docket No. 19-0177 (issued June 19, 2019); D.R., Docket No. 18-0357 (issued July 2, 2018); A.K.,
Docket No. 09-2032 (issued August 3, 2010); Susan A. Filkins, 57 ECAB 630 (2006).
12

T.H., Docket No. 18-1542 (issued April 8, 2019); M.E., 58 ECAB 694 (2007).

6

ORDER
IT IS HEREBY ORDERED THAT the December 21, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 18, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
Yuba, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 20-1301
Issued: July 28, 2021

Case Submitted on the Record

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

JURISDICTION
On June 16, 2020 appellant filed a timely appeal from a March 2, 2020 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed from
OWCP’s last merit decision, dated October 22, 2018, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On February 27, 2018 appellant, then a 79-year-old claims assistant, filed an occupational
disease claim (Form CA-2) alleging that she developed a pressure ulcer due to factors of her federal
1

5 U.S.C. § 8101 et seq.

employment, including sitting, typing, and answering telephones while sitting in a wheelchair. She
noted that she first became aware of her condition on September 25, 2017 and first realized its
relation to her federal employment on October 1, 2017. Appellant stopped work on
September 25, 2017.
In a March 14, 2018 development letter, OWCP informed appellant of the deficiencies of
her claim. It advised her of the type of factual and medical evidence needed to establish her claim
and provided a questionnaire for her completion. OWCP afforded appellant 30 days to submit the
necessary evidence.
In a March 17, 2018 response to OWCP’s development questionnaire, appellant noted that
she had been a paraplegic since a 1983 car accident and had been working while sitting in a power
wheelchair from 2001 through 2015 without any problems. She indicated that she got a new power
wheelchair in 2015, which was not properly designed for long-term sitting. Appellant asserted
that she had no other chair to work from and continued to work in an inadequate power wheelchair
for approximately 27 months, 8 hours a day for 5 days per week. She noted that she began
experiencing discomfort and pain in her hips and legs despite her best attempt to shift weight
periodically to cope with prolonged sitting. Appellant alleged that she eventually developed “a
hard knot or mass under [her] skin on the upper right side of [her] back close to [her] spine.” She
noted that she was diagnosed with a pressure ulcer by her physician and was referred to a plastic
surgeon. Appellant underwent surgery on December 4, 2017 “to stop the ulcer from going into
[her] bloodstream.” She contended that working from a not well-designed wheelchair caused her
ulcer on her right low back.
Appellant also submitted a February 13, 2018 Certification of Health Care Provider for
Employee’s Serious Heath Condition form from Dr. Kelly Gallego, Board-certified in plastic
surgery, who diagnosed an open wound pressure ulcer and found that appellant could not sit for
prolonged periods.
By decision dated June 14, 2018, OWCP denied appellant’s claim, finding that the medical
evidence of record was insufficient to establish that her diagnosed condition was causally related
to the accepted factors of her federal employment.
In medical reports dated October 11, 17, and 30, 2017, Dr. Winston J. Serrano, Boardcertified in family practice, indicated that appellant was wheelchair-dependent and paraplegic. He
provided multiple diagnoses, including scoliosis of the lumbar spine, chronic acute low back pain
with left-sided sciatica, and a decubitus ulcer of the left buttock.
October 17, 2017 x-rays of the left hip and pelvis revealed probable bone island in the
superior left acetabular region and levoscoliosis of the lower lumbar spine with moderate
degenerative change. An x-ray of the lumbar spine of even date demonstrated 32 degrees
levoscoliosis of the lumbar spine, moderate disc space narrowing and degenerative change at
L3-L4 and L4-L5 levels and in the imaged lower thoracic spine, and bony fusion through the L5-S1
disc space.
In a series of medical reports dated November 16, 2017 through May 7, 2018, Dr. Gallego
indicated that appellant was referred to him by Dr. Serrano regarding a pressure ulcer on her right

2

buttock. He also noted that she underwent a surgical procedure on December 4, 2017 and indicated
that she was recovering well with no evidence of ongoing infection or necrosis. Dr. Gallego
reported that appellant still experienced some issues and remained off work.
In a July 2, 2018 letter, Dr. Serrano noted that appellant had been dealing with a sacral
decubitus pressure ulcer since November 2017. He opined that her ulcer was aggravated by
prolonged sitting and that she needed a special wheelchair that allowed her to change position
every one to two hours.
In a form dated and postmarked July 5, 2018, appellant requested review of the written
record by an OWCP hearing representative.
By decision dated October 22, 2018, OWCP’s hearing representative affirmed the June 14,
2018 decision.
On December 5, 2018 appellant requested reconsideration and submitted additional
evidence.
In a November 2, 2018 medical report, Dr. Serrano diagnosed a pressure ulcer of the right
buttock. He again noted that appellant had been wheelchair-dependent since her car accident in
1983. Dr. Serrano explained that appellant needed to find a comfortable position when sitting
because of the weakness of her spine that prevented her from shifting easily. He indicated that her
new power wheelchair made it difficult for her to recline and change her position. Dr. Serrano
reported that appellant had been leaning more to her right side, which led to a sacral pressure ulcer
in September 2017. He opined that because appellant’s work required her to sit for eight hours
each day, and as she was unable to shift her position, it led to her diagnosed pressure ulcer.
Dr. Serrano noted that appellant’s ulcer was now completely healed since her surgery, but
concluded that it was work related given her job duties that prevented her from shifting.
By decision dated March 2, 2020, OWCP denied merit review of appellant’s claim
pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.2
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by

2
Id. at § 8128(a); see M.S., Docket No. 19-1001 (issued December 9, 2019); L.D., Docket No. 18-1468 (issued
February 11, 2019); see also V.P., Docket No. 17-1287 (issued October 10, 2017); W.C., 59 ECAB 372 (2008).

3

OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.3
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.4 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.5 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.6
ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
The underlying issue on reconsideration is the medical question of whether appellant’s
diagnosed pressure ulcer was causally related to the accepted factors of her federal employment.
Along with the December 5, 2018 reconsideration request, appellant submitted Dr. Serrano’s
November 2, 2018 medical report in which he specifically opined that because appellant’s work
required her to sit for eight hours each day and as she was unable to shift her position, it led to her
diagnosed pressure ulcer. As his report addressed the underlying issue of causal relationship
between appellant’s diagnosed medical condition and the accepted factors of her federal
employment, the report constitutes relevant and pertinent new evidence that is not substantially
similar to evidence previously considered. Therefore, the Board finds that the submission of this
evidence requires reopening of appellant’s claim for merit review pursuant to the third requirement
of 20 C.F.R. § 10.606(b)(3).7
Consequently, the Board will set aside OWCP’s March 2, 2020 decision and remand the
case for an appropriate merit decision on appellant’s claim.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).

3
20 C.F.R. § 10.606(b)(3); see L.D., id.; see also K.L., Docket No. 17-1479 (issued December 20, 2017); C.N.,
Docket No. 08-1569 (issued December 9, 2008).
4

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016).
Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received
date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
5

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

6

Id. at § 10.608(b); M.S., Docket No. 19-0291 (issued June 21, 2019); E.R., Docket No. 09-1655 (issued
March 18, 2010).
7

Supra note 3; see also M.J., Docket No. 20-1067 (issued December 23, 2020).

4

ORDER
IT IS HEREBY ORDERED THAT the March 2, 2020 nonmerit decision of the Office
of Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: July 28, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.R., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Little Rock, AR, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
James W. Stanley Jr., Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-170
Issued: September 23, 2011

Case Submitted on the Record

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

JURISDICTION
On October 27, 2010 appellant filed a timely appeal from July 2 and September 2, 2010
decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained an occupational disease in the performance of duty; and (2) whether OWCP properly
denied appellant’s request for reconsideration under 5 U.S.C. § 8128(a) without further merit
review.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 30, 2009 appellant, then a 48-year-old customer services supervisor, filed
an occupational disease claim. He alleged that he aggravated his preexisting degenerative knee
joint disease and foot osteoarthritis due to walking and conducting route inspections for years.
Appellant became aware of his condition on January 20, 2003 and realized its relationship to his
employment on February 10, 2008. He stopped work on October 30, 2009.
Appellant detailed in an undated statement that he worked for the employing
establishment since 1991. As a result of his job duties, namely walking on hard surfaces and
performing route inspections, he experienced bilateral knee pain around 2003, which led to two
right knee operations in 2003 and 2005 and a left knee operation in 2008. Appellant also
developed severe right foot pain in late 2006 and early 2007 and was diagnosed with
degenerative arthritis secondary to his injured knees. He notified his superiors about his
condition, but continued to perform his duties. On October 21, 2009 appellant underwent left
subtalar joint fusion surgery.
In an August 10, 2004 report from Dr. William S. Bowen, a Board-certified orthopedic
surgeon, appellant complained of right posterior kneecap pain and added that his knee was
previously scoped to repair a medial meniscus that he tore while in military service. On
examination, Dr. Bowen observed healed arthroscopic portals, trace effusion, tenderness near the
lateral joint line and significant crepitus around the lateral retinaculum. X-rays showed a large
spur formation off the anterior patellar pole. Dr. Bowen diagnosed right patellofemoral
osteoarthritis with a bone spur and synovitis. In an April 21, 2005 follow-up report, he
recommended repeat arthroscopic surgery.2
An October 31, 2006 report from Dr. R. Alex Dellinger, a podiatrist, noted left plantar
pain. Examination revealed pes planus and acute pain on palpation along the medial band of the
plantar fascia. X-rays showed a possible prior medial sesamoid fracture, mild hallux valgus
deformity and metatarsus adductus. Dr. Dellinger diagnosed plantar fasciitis. On November 14,
2006 he diagnosed neuritis after noting swelling and acute pain on palpation of the deep peroneal
nerve. On February 14, 2007 appellant had pain in the dorsum of the left foot. Dr. Dellinger
found slight tingling and pain on percussion over the dorsum at the base of the fourth metatarsal
and about the fourth metatarsocuboid joint. In a December 18, 2007 note, he pointed out that
appellant’s symptoms became increasingly medial with dull pain on palpation around the first
metatarsocuneiform joint. Radiological data showed early osteoarthritic change. Dr. Dellinger
diagnosed first metatarsocuneiform joint osteoarthritis.3
On March 17, 2008 Dr. Bowen noted appellant’s left knee pain and stated that his job
required prolonged standing. He noted that appellant’s weight had dropped from 380 to 320
pounds since he last saw him three years earlier. Appellant had left knee tenderness while x-rays
2

Dr. Bowen’s reports from July 5 and August 18, 2005 noted appellant’s postoperative recovery and scheduled
an August 22, 2005 return-to-work date.
3

Appellant later complained of sharp left heel pain, which Dr. Dellinger diagnosed as plantar fasciitis in a
June 24, 2008 note. A July 8, 2008 follow-up note stated that his symptoms significantly improved.

2

confirmed mild right knee tricompartmental arthritis. Dr. Bowen diagnosed left patellar
chondromalacia. He added in an April 29, 2008 report that appellant had crepitus in the anterior
aspect and medial compartment of the left knee and a possible meniscal tear. Appellant had a
left knee arthroscopy on May 14, 2008. On June 30, 2008 Dr. Bowen related that appellant had a
longstanding knee condition due to his military service and had surgeries on both knees. X-rays
showed fairly significant bilateral knee osteoarthritis. Dr. Bowen opined that “an extensive
amount” of appellant’s left knee pain and symptoms were the “direct result of him having to bear
the majority of his weight following his right knee surgery and injuries onto his left side which
would certainly exacerbate any prearthritic type of condition.”4
In a July 14, 2009 report from Dr. Dellinger, appellant complained of bilateral ankle and
hindfoot pain, aches and soreness. Foot x-rays feet showed dorsal talar neck spurs and decreased
subtalar joint space. Appellant had sharp pain on palpation of the bilateral lateral sinus tarsi and
diminished range of motion of the bilateral subtalar joints. Dr. Dellinger diagnosed sinus tarsitis
and osteoarthritis. He also assessed Morton’s neuroma of the left foot in an August 18, 2009
report due to a positive Mulder’s sign. In an August 21, 2009 report, Dr. David L. Harshfield,
Jr., a Board-certified diagnostic radiologist, stated that a computerized tomography (CT) scan of
the ankles showed moderate hypertrophy of the Achilles tendon, low-grade hypertrophic changes
of the medial and lateral tendon groups, chronic ankle changes with traction-related ossification,
and atherosclerotic calcification. On August 27, 2009 Dr. Dellinger noted that the CT scan
confirmed osteoarthritic changes in the subtalar joint.
OWCP informed appellant in a December 15, 2009 letter about the evidence needed to
establish his claim. Appellant submitted additional medical records and a response to an OWCP
questionnaire regarding his job duties.
In a December 22, 2009 report, Dr. Dellinger diagnosed arthritis of the hindfeet and
bilateral subtalar joints. He pointed out that appellant recently underwent left subtalar joint
fusion surgery and was expected to have the same operation on his right foot in the future.
Dr. Dellinger noted that appellant “admits to being on his feet a lot over the years for his job.”
He opined that this “certainly may have contributed to his current condition” and that he “may or
may not develop further arthritis in other joints in the future, but is likely due to his current status
and previous job requirements.”
A January 5, 2010 report from Dr. Bowen noted that appellant sustained chronic bilateral
knee and foot problems, both of which necessitated surgery. Dr. Bowen mentioned that
appellant was required to stand or walk for most of the workday, but was unlikely to continue
with his current duties based on his body mass index and lower-extremity orthopedic ailments.
In a February 8, 2010 decision, OWCP denied the claim, finding the medical evidence
insufficient to establish that the accepted employment activity aggravated a diagnosed condition.
Appellant requested reconsideration on March 30, 2010. In a February 25, 2010 report,
Dr. Bowen noted that appellant’s job with the employing establishment “has always required
significant standing and excessive amounts of walking.” He opined: “His knees have both
4

Appellant received injections from Dr. Bowen for his bilateral knee osteoarthritis and synovitis.

3

deteriorated over the years and I do believe this is a direct result of both his weight and his
extensive amount of activity that his job requires. Certainly his work has been an aggravating
condition in his knees and at his young age.” Dr. Bowen stated that appellant would continue
with conservative management but would likely need future knee replacement surgery.
Dr. Dellinger repeated in a March 29, 2010 note that appellant’s arthritic foot condition
was the direct result of both his weight and job activity, namely significant standing and
excessive amounts of walking. Dr. Dellinger also noted that appellant’s work had aggravated the
condition of his feet.
On July 2, 2010 OWCP denied modification of the February 8, 2010 decision.
Appellant requested reconsideration on August 12, 2010 and submitted additional
evidence. In an August 10, 2010 note, Dr. Dellinger related that appellant underwent a failed left
subtalar joint fusion procedure on October 21, 2009 and required revisional surgery. He also
reiterated that appellant walked and stood extensively at work, which “facilitated the
development of his original arthritic condition.” Dr. Dellinger’s July 2, 2010 duty status report
released appellant to full-time, modified duty.
On September 2, 2010 OWCP denied appellant’s request for reconsideration on the basis
that he did not present new evidence or legal contentions warranting further merit review.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period, that an injury was sustained in the performance of duty as alleged and that any
disabilities and/or specific conditions for which compensation is claimed are causally related to
the employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.7 To establish fact of injury in an
occupational disease claim, an employee must submit: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.8

5

Elaine Pendleton, 40 ECAB 1143 (1989).

6

Victor J. Woodhams, 41 ECAB 345 (1989).

7

See S.P., 59 ECAB 184, 188 (2007).

8

See R.R., Docket No. 08-2010 (issued April 3, 2009); Roy L. Humphrey, 57 ECAB 238, 241 (2005).

4

Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.9
ANALYSIS -- ISSUE 1
The evidence supports that appellant’s job duties involved prolonged walking and
standing as well as repetitive bending and stooping. The record also contains several firm
diagnoses, most notably bilateral knee, hindfoot and subtalar joint arthritis. Nonetheless, the
medical evidence is insufficient to establish that the described employment factors aggravated a
preexisting condition.
Dr. Bowen’s reports from August 10, 2004 to February 25, 2010 documented appellant’s
persisting knee problems. He obtained a history of injury, noting that appellant previously
sustained a torn right medial meniscus in the military and underwent numerous arthroscopies on
both knees. Dr. Bowen diagnosed bilateral knee osteoarthritis. In a February 25, 2010 note, he
concluded that appellant’s employment, which entailed significant standing and excessive
amounts of walking, directly contributed to his condition. However, Dr. Bowen’s opinion is of
little probative value because he failed to provide medical rationale explaining how standing,
walking, bending or stooping pathophysiologically aggravated a preexisting injury.10
In medical records from October 31, 2006 to March 29, 2010, Dr. Dellinger noted left
foot symptoms and eventually diagnosed bilateral hindfoot and subtalar joint arthritis based on
physical examination and x-rays. He further noted that appellant underwent left subtalar joint
fusion surgery and was expected to have the same operation on his right foot. Dr. Dellinger
opined in a December 22, 2009 and March 29, 2010 reports that standing and walking on the job
for many years directly aggravated his condition and that he developed arthritis as a direct result
of both his weight and activity required in his job. His opinion, though, lacks fortifying medical
rationale and has diminished probative value on the issue of causal relationship.11
Lastly, Dr. Harshfield’s August 21, 2009 report is of limited probative weight since no
opinion was given regarding the cause of appellant’s condition.12
On appeal, appellant’s counsel argues that Drs. Bowen and Dellinger’s reports were
sufficient to establish the occupational disease claim and that the burden shifted to OWCP to
9

I.J., 59 ECAB 408 (2008); Woodhams, supra note 6.

10

Joan R. Donovan, 54 ECAB 615, 621 (2003); Ern Reynolds, 45 ECAB 690, 696 (1994).

11

See George Randolph Taylor, 6 ECAB 986, 988 (1954).

12

J.F., Docket No. 09-1061 (issued November 17, 2009); S.E., Docket No. 08-2214 (issued May 6, 2009).

5

demonstrate that their opinions on causal relationship were inadequate.13 As noted, the medical
evidence did not pathophysiologically explain how appellant’s employment factors aggravated a
preexisting knee or foot condition. Moreover, appellant has the burden of establishing by the
weight of reliable, probative and substantial evidence that his condition was caused adversely
affected by his employment. As part of this burden, he must present rationalized medical
opinion evidence, based on a complete factual and medical background, showing causal
relation.14 The absence of a known etiology for appellant’s condition does not relieve him of this
burden. In addition, the fact that the etiology is unknown or obscure does not shift the burden of
proof to OWCP to disprove causal relation. Causal relation between the disabling disease and
the employment must be established in each case by affirmative evidence.15 In the absence of
well-reasoned medical opinion explaining this relationship, appellant failed to meet his burden.16
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,17
OWCP regulations provide that the evidence or argument submitted by a claimant must either:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.18 Where the request for
reconsideration fails to meet at least one of these standards, OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.19
ANALYSIS -- ISSUE 2
Appellant requested reconsideration and provided a July 2, 2010 duty status report and
August 10, 2010 note from Dr. Dellinger. OWCP denied his request on the grounds that he did
not present new evidence warranting further merit review. Appellant contends on appeal that
OWCP failed to consider all the pertinent medical evidence.
Evidence submitted on reconsideration includes Dr. Dellinger’s August 10, 2010 note.
The Board finds that this treatment note constitutes relevant and pertinent new evidence not
previously considered by OWCP as it addressed the underlying issue of OWCP’s July 2, 2010
merit decision: whether appellant’s employment factors aggravated a preexisting arthritic
13

The Board notes that appellant’s counsel makes several references to medical reports that are not part of the
record.
14

Froilan Negron Marrero, 33 ECAB 796 (1982).

15

See William D. Styron, 32 ECAB 866 (1981).

16

The Board points out that appellant submitted new evidence after issuance of the July 2, 2010 merit decision.
However, the Board lacks jurisdiction to review evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).
17

5 U.S.C. § 8128(a).

18

E.K., Docket No. 09-1827 (issued April 21, 2010). See 20 C.F.R. § 10.606(b)(2).

19

L.D., 59 ECAB 648 (2008). See 20 C.F.R. § 10.608(b).

6

condition. Therefore, OWCP was obligated to conduct a merit review of the claim when
appellant submitted this evidence in support of his reconsideration request.20 Reopening a claim
for merit review does not require a claimant to submit all evidence which may be necessary to
discharge his burden of proof.21 If OWCP should determine that the new evidence submitted
lacks probative value, it may deny modification of the prior decision, but only after the case has
been reviewed on the merits.22 Appellant’s case shall be remanded to OWCP to conduct a merit
review of the entire record. After such further development as is deemed necessary, OWCP shall
issue an appropriate merit decision.
CONCLUSION
The Board finds that appellant did not establish that he sustained an occupational disease
in the performance of duty. However, the Board finds that OWCP improperly denied appellant’s
request for reconsideration under 5 U.S.C. § 8128(a) without further merit review.

20

OWCP improperly determined in the September 2, 2010 decision that Dr. Dellinger’s August 10, 2010 note
duplicated previously-considered evidence. Dr. Dellinger’s first attempt to support causal relationship in a
December 22, 2009 report vaguely stated that appellant’s condition may have been due to “being on his feet a lot
over the years for his job.” Later, his March 29, 2010 note attributed appellant’s injury to both his weight and his
job activities at work, namely standing and walking. By comparison, the August 10, 2010 opinion not only
specified the employment duties that contributed to appellant’s condition, but also omitted any reference to his
weight as a contributory factor. Thus, the August 10, 2010 treatment note addressed causal relationship in a
different manner than the physician’s previous reports.
21

See Kenneth R. Mroczkowski, 40 ECAB 855 (1989); Helen E. Tschantz, 39 ECAB 1382 (1988).

22

See Dennis J. Lasanen, 41 ECAB 933 (1990).

7

ORDER
IT IS HEREBY ORDERED THAT the July 2, 2010 decision of the Office of Workers’
Compensation Programs is affirmed and the September 2, 2010 decision of OWCP is set aside
and remanded for further action consistent with this decision.
Issued: September 23, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
DEPARTMENT OF AGRICULTURE, FOOD
SAFETY & INSPECTION SERVICE,
Minneapolis, MN, Employer
__________________________________________

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

Docket No. 13-632
Issued: June 14, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 22, 2013 appellant filed a timely appeal from a November 5, 2012 decision of
the Office of Workers’ Compensation Programs (OWCP) regarding a schedule award. Pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a ratable impairment of the right arm due to an
accepted cervical spine injury.
FACTUAL HISTORY
OWCP accepted that on February 1, 2010 appellant, then a 51-year-old poultry inspector,
sustained a herniated C5-6 disc in a motor vehicle accident that occurred in the performance of
1

5 U.S.C. § 8101 et seq.

duty.2 Appellant stopped work on February 1, 2010 and did not return. Dr. Edward W.
Hellman, an attending Board-certified orthopedic surgeon, diagnosed cervical stenosis with
radicular left arm pain on March 16, 2010. On April 8, 2010 he performed a C5-6 discectomy
and fusion with cage placement and bone autograft. OWCP approved the procedure.
Appellant received compensation on the daily rolls beginning on March 20, 2010 and on
the periodic rolls beginning on June 6, 2010. A February 17, 2011 cervical computerized
tomography (CT) scan showed well-maintained alignment of the C5-6 fusion, stable cage
placement and patent exit foramina. On March 2, 2011 Dr. Hellman diagnosed failed neck
syndrome as appellant had continued neck pain although her cervical fusion remained solid. He
referred appellant to Dr. Gary Baxter, a pain management specialist.3 Dr. Hellman held
appellant off work commencing in March 2011. He opined on June 7, 2011 that many of
appellant’s complaints seemed “nonphysiologic.”
On August 7, 2011 OWCP obtained a second opinion from Dr. Raju Vanapalli, a Boardcertified orthopedic surgeon, who reviewed the medical record and statement of accepted facts.
On examination, Dr. Vanapalli found subjectively restricted cervical motion due to pain, tingling
and numbness along the ulnar border of the left elbow and forearm in the C8-T1 dermatome,
equal reflexes in both arms and good grip strength bilaterally. He found that appellant had
attained maximum medical improvement, stating that the accepted injury had resolved without
objective residuals. Dr. Vanapalli noted that appellant’s subjective complaints outweighed any
objective findings.
In a September 27, 2011 report, Dr. Hellman noted that a repeat CT scan showed a solid
cervical fusion with solid bone through the cage. He noted that a nerve conduction velocity
(NCV) study showed cubital tunnel syndrome that could explain some of appellant’s upper
extremity symptoms. Dr. Hellman released appellant to restricted duty as of November 1, 2011,
noting that she had scheduled a cubital tunnel and ulnar nerve transposition procedure.4 He
agreed with Dr. Vanapalli’s opinion that appellant had no objective residuals of the accepted disc
herniation.
Appellant elected to receive retirement benefits through the Office of Personnel
Management (OPM) in lieu of FECA compensation benefits effective November 20, 2011.
On April 6, 2012 appellant claimed a schedule award. She submitted a March 21, 2012
impairment rating from Dr. Hellman utilizing the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (hereinafter, the A.M.A.,
Guides). Dr. Hellman opined that, according to page 564 of the A.M.A., Guides,5 appellant had
2

Cervical spine x-rays obtained on February 1, 2010 were normal. A February 24, 2010 magnetic resonance
imaging scan showed a C5-6 disc bulge with stenosis and left-sided cord compression.
3

Dr. Baxter provided periodic reports from May to November 2011 diagnosing cervical radiculitis and chronic
neck pain.
4

An October 17, 2011 functional capacity evaluation demonstrated that appellant could perform full-time
sedentary work. The examiner noted that appellant showed inconsistent effort during testing.
5

Page 564 of the sixth edition of the A.M.A., Guides is Table 17-2, entitled “Cervical Spine Regional Grid.”

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a class 1 impairment of the cervical spine, as her postoperative studies showed an entirely stable
cervical fusion with no evidence of nerve root impingement.
In an April 6, 2012 letter, OWCP advised appellant of the additional evidence needed to
establish her schedule award claim, including a physician’s opinion confirming a ratable
impairment of a scheduled member of the body based on the appropriate portions of the A.M.A.,
Guides. Appellant was afforded 30 days to submit such evidence.
On May 21, 2012 an OWCP medical adviser reviewed the medical record and concurred
with Dr. Hellman’s finding that appellant attained maximum medical improvement as of
March 21, 2012. He opined that, in the absence of any radiculopathy in the C6 dermatome or
elsewhere, appellant had a zero percent impairment of either upper extremity. The medical
adviser noted that Dr. Hellman did not properly utilize the A.M.A., Guides, as he did not refer to
The Guides Newsletter, July/August 2009 that set forth the methodology for rating upper
extremity impairments originating in the spine.
By decision dated May 31, 2012, OWCP denied appellant’s schedule award claim finding
that the medical evidence did not establish a ratable impairment of a scheduled member of the
body. It found that in the absence of an upper extremity radiculopathy as described in The
Guides Newsletter, July/August 2009, appellant had not established an impairment of a
scheduled member.
In a September 14, 2012 letter, appellant requested reconsideration. She submitted a
July 24, 2012 impairment rating from Dr. Hellman finding 11 percent impairment of the right
upper extremity based on unspecified portions of The Guides Newsletter, July/August 2009.
Appellant also provided an April 19, 2012 electromyography and NCV report from a physical
therapist showing a mild focal mononeuropathy of the right ulnar nerve across the elbow. The
physical therapist noted “isolated muscle membrane instability at the right (C5-6) paraspinals
that may suggest a very mild radiculopathy involving the respective dorsal primary rami.”6
On October 17, 2012 an OWCP medical adviser reviewed the medical record and again
found that appellant had attained maximum medical improvement as of March 21, 2012. He
explained that the paraspinal muscle instability noted on the April 19, 2012 electrodiagnostic
study “cannot be accepted as evidence of a radiculopathy.” The medical adviser found that in
“the absence of objective evidence of spinal nerve root deficit,” appellant had no permanent
impairment of either upper extremity.
By decision dated November 5, 2012, OWCP denied modification of its May 31, 2012
decision, finding that the evidence submitted on reconsideration did not establish a ratable
impairment of either upper extremity.

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Appellant also submitted a July 30, 2012 report from Dr. Baxter stating that she could participate in all activities
of daily living.

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LEGAL PRECEDENT
The schedule award provision of FECA7 and its implementing regulations8 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 to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.9
No schedule award is payable for a member, function, or organ of the body not specified
in FECA or in the regulations.10 Because neither FECA nor the regulations provide for the
payment of a schedule award for the permanent loss of use of the back,11 no claimant is entitled
to such an award.12 However, in 1966, amendments to FECA modified the schedule award
provision to provide for an award for permanent impairment to a member of the body covered by
the schedule regardless of whether the cause of the impairment originated in a scheduled or
nonscheduled member. As the schedule award provision of FECA includes the extremities, a
claimant may be entitled to a schedule award for permanent impairment to an extremity even
though the cause of the impairment originated in the spine.13
ANALYSIS
OWCP accepted that appellant sustained a herniated C5-6 disc necessitating surgical
fusion with cage placement and bone autograft. Appellant remained under treatment for neck
pain through March 2012. She claimed a schedule award on April 6, 2012. Appellant submitted
a March 12, 2012 impairment rating from Dr. Hellman, an attending Board-certified orthopedic
surgeon, finding an impairment of the cervical spine without nerve root impingement. OWCP
denied the schedule award claim on May 31, 2012 as appellant had not demonstrated a
permanent impairment to a scheduled member of the body. On reconsideration, appellant
submitted a July 24, 2012 report from Dr. Hellman finding 11 percent impairment of the right
upper extremity based on unspecified sections of The Guides Newsletter July/August 2009. She
also provided April 19, 2012 electrodiagnostic studies noting muscle instability in the right C5-6
paraspinals possibly indicating a very mild radiculopathy. OWCP denied modification on

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

Id.; Jacqueline S. Harris, 54 ECAB 139 (2002).

10

Henry B. Floyd, III, 52 ECAB 220 (2001).

11

FECA specifically excludes the back from the definition of “organ.” 5 U.S.C. § 8101(19).

12

Thomas Martinez, 54 ECAB 623 (2003).

13

See Thomas J. Engelhart, 50 ECAB 319 (1999).

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November 5, 2012 as the medical evidence did not support a nerve root impairment affecting
either arm.
Appellant asserted that the accepted C5-6 disc herniation caused a permanent impairment
of the right arm. Although FECA does not provide for a schedule award for the back or spine,
impairment of the extremities due to a spinal injury may be compensable,14 but appellant did not
submit sufficient medical evidence to establish impairment. Dr. Hellman opined that appellant
had 11 percent impairment of the right arm but did not describe the nature of this impairment or
its pathophysiologic connection to the C5-6 disc herniation. He did not address how he applied
The Guides Newsletter to take impairment. Dr. Hellman did not set forth the specific tables or
grading schemes that he used to arrive at the 11 percent impairment. His opinion is therefore
insufficient to meet appellant’s burden of proof.15
Appellant also submitted April 19, 2012 electrodiagnostic studies performed and
interpreted by a physical therapist, indicating a possible, very mild right C5-6 radiculopathy due
to paraspinal instability. A physical therapist is not a physician as defined under FECA. As
there is no evidence that a physician, signed or reviewed this report, it cannot be considered as
probative medical evidence in this case.16
As appellant did not submit sufficient medical evidence demonstrating that the accepted
C5-6 disc herniation caused a permanent impairment of a scheduled member, OWCP properly
denied her schedule award claim. She may request a schedule award or increased schedule
award based on evidence of a new exposure or medical evidence showing progression of an
employment-related condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that she sustained a ratable permanent
impairment of the right upper extremity causally related to an accepted cervical spine injury.

14

See Thomas J. Engelhart, supra note 13.

15

Renee M. Straubinger, 51 ECAB 667 (2000) (where the Board found that before the A.M.A., Guides can be
utilized, a description of the claimant’s impairment must be obtained from his or her physician with the description
in sufficient detail so that the claims examiner and others reviewing the file will be able to clearly visualize the
impairment with its resulting restrictions and limitations).
16

A medical report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as a physician as defined in 5 U.S.C. § 8101(2). Section 8101(2) of FECA provides
as follows: (2) physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors,
and osteopathic practitioners within the scope of their practice as defined by State law. J.T., Docket No. 12-1903
(issued February 15, 2013). See Merton J. Sills, 39 ECAB 572, 575 (1988).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 5, 2012 is affirmed.
Issued: June 14, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
PUBLIC HEALTH SERVICE, BLACKFEET
COMMUNITY HOSPITAL, Browning, MT,
Employer
__________________________________________

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

Docket No. 07-1415
Issued: October 24, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 1, 2007 appellant filed a timely appeal from a March 12, 2007 decision of the
Office of Workers’ Compensation Programs finding that she received an overpayment of
compensation and that she was at fault in its creation. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the overpayment decision.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received an
overpayment of $1,005.00 because it deducted health insurance premiums for single rather than
family coverage from January 22 to September 2, 2006; (2) whether she was at fault in creating
the overpayment; and (3) whether the Office properly determined that it would withhold $300.00
per month from appellant’s continuing compensation to repay the overpayment.

FACTUAL HISTORY
On January 12, 2001 appellant, then a 29-year-old registered nurse, filed a claim for a
traumatic injury to her back occurring on January 4, 2001 in the performance of duty. The
Office accepted her claim for a herniated disc of the lumbar spine. Appellant stopped work on
January 7, 2001 and did not return. The Office placed her on the periodic rolls beginning
February 20, 2001.
By letter dated August 30, 2006, appellant informed the Office that she put the wrong
code on her health benefits election form. She maintained that, when changing her health benefit
coverage from high option to standard option, she placed code 454 on the form based on the
advice of an Office claims examiner. Appellant stated:
“In January I received a phone call from Mail Handlers asking if I really wanted
to drop my family or if I had just entered the wrong code. I explained to them
that I had gotten the code from you and did not realize it was the wrong code.
They assured me they would take care of it and could easily understand how that
would happen. I called back approximately one month later to verify that I did
indeed have family coverage and they assured me that I did. When I called last
Friday, the 25th of August, they again verified that I did have family coverage.”
Appellant noted that the Office was deducting for single coverage only.
Computer worksheets establish that the Office deducted $92.52 in premiums for health
benefits from appellant’s continuing compensation using code 454 beginning January 22, 2006.
On November 20, 2006 the Office notified her of its preliminary determination that she received
an overpayment of compensation in the amount of $1,005.00 because it deducted health benefits
premiums for single coverage rather than family coverage from January 22 to
September 2, 2006. The Office further informed appellant of its preliminary determination that
she was without fault in the creation of the overpayment. The Office referenced an
accompanying memorandum which described the calculation of the overpayment. The Office
deducted $92.52 from her compensation using health benefits code 454 from January 22 to
August 5, 2006 and deducted no premiums for health benefits from August 6 to September 2,
2006, for a total withheld of $647.64. The Office should have deducted $206.58 in health
benefits using code 455 for family coverage from her continuing compensation for this period,
for a total of $1,652.64. Consequently, appellant received an overpayment of $1,005.00.
On January 5, 2007 appellant contested that she received an overpayment of
compensation. She argued that the Office deducted $121.86 per month from her compensation
rather than $92.52. Appellant additionally maintained that she has not had family coverage since
January 21, 2006. She asserted that the Office had not informed her how it calculated the
overpayment of $1,000.00. Appellant requested a telephone conference.
On February 22, 2007 a claims examiner telephoned appellant and requested supporting
financial documents prior to scheduling a telephone conference. Appellant maintained that she
did not have family coverage from January 22 to September 2, 2006. The claims examiner
called her insurance carrier and stated:

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“They confirmed that their records reflect code 455 family effective January 22,
2006 just as the claimant had intended to do with her enrollment card submitted on
November 28, 2005, and they also confirmed that some bills for family members
had been denied, but that they also paid medical bills for family members in 2006,
so the family had coverage and the claimant should pay the premiums
accordingly.”
The claims examiner informed appellant of the information she received from the
insurance carrier on February 23, 2007 and again requested financial documentation to support
waiver prior to scheduling a teleconference.
By decision dated March 12, 2007, the Office finalized its finding that appellant received
an overpayment of $1,005.00. The Office further determined that she was at fault in the creation
of the overpayment as her health insurance provider had “retroactively reinstate[d] [her] family
coverage, and did pay for family members during 2006….” The Office noted that appellant had
not submitted the overpayment recovery questionnaire and found that the overpayment should be
repaid by withholding $300.00 from her continuing compensation.
LEGAL PRECEDENT -- ISSUE 1
An employee entitled to disability compensation may continue his or her health benefits
under the Federal Employee Health Benefits Program. The regulation of the Office of Personnel
Management (OPM), which administers the Federal Employee Health Benefits Program,
provides guidelines for the registration, enrollment and continuation of enrollment for federal
employees. In this connection, 5 C.F.R. § 890.502(b)(1) provides:
“An employee or annuitant is responsible for payment of the employee’s share of
the cost of enrollment for every pay period during which the enrollment
continues. In each pay period for which health benefits withholdings or direct
premium payments are not made but during which the enrollment of an employee
or annuitant continues, he or she incurs an indebtedness to the United States in the
amount of the proper employee withholding required for that pay period.”1
In addition, 5 C.F.R. § 890.502(c)(1) provides:
“An agency that withholds less than or none of the proper health benefits
contributions for an individual’s pay, annuity or compensation must submit an
amount equal to the sum of the uncollected deductions and any applicable agency
contributions required under section 8906 of the title, 5 United States Code, to
OPM for deposit in the Employees Health Benefits Fund.”2

1

5 C.F.R. § 890.502(b)(1).

2

Id. at § 890.502(d).

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Under applicable OPM regulations, the employee or annuitant is responsible for payment
of the employee’s share of the cost of enrollment.3 An agency that withholds less than the proper
health benefits contribution must submit an amount equal to the sum of the uncollected
deductions.4 The Board has recognized that, when an under withholding of health insurance
premiums is discovered, the entire amount is deemed an overpayment of compensation because
the Office must pay the full premium to OPM when the error is discovered.5
ANALYSIS -- ISSUE 1
Appellant mistakenly put down code 454 for single coverage beginning January 22, 2006
instead of code 455 for family coverage. Her health insurance provider telephoned her in
January 2006 to verify the change from family to single coverage. Appellant informed her health
insurance provider that she had put down an incorrect code and wanted to continue family
coverage. She ascertained in subsequent telephone calls that she had family coverage. From
January 22 to August 5, 2006 the Office deducted $92.52 for health benefits premiums from her
compensation using code 454, for a total of $647.64. The Office did not deduct any health
benefits premiums from August 6 to September 2, 2006.
The Office should have deducted premiums of $1,652.64 for health benefits from
January 22 to September 2, 2006 using code 455 for family coverage. The Office’s failure to
deduct the premiums for health insurance under the family plan coverage from January 22 to
September 2, 2006 resulted in an overpayment of $1,005.00, or $647.64 subtracted from
$1,652.64. The Board has recognized that, when an under withholding of health insurance
premiums is discovered, the entire amount is deemed an overpayment of compensation because
the Office must pay the full premium to OPM when the error is discovered.6 The Board finds
that the amount of the overpayment due to the underdeduction of health benefit premiums is
$1,005.00.
Appellant argued that she did not have family coverage from January 22 to
February 8, 2006. In her August 30, 2006 letter to the Office, however, she related that her
health insurance provider telephoned her in January 2006 to ascertain whether she wanted to
change to single coverage. Appellant subsequently confirmed with her health insurance provider
on two occasions that she had family coverage. The Office also telephoned her health insurance
provider on February 22, 2007 and verified that she had family coverage beginning
January 22, 2006.

3

Id. at § 890.502(b)(1).

4

Id. at § 890.502(d).

5

James Lloyd Otte, 48 ECAB 334 (1997).

6

Id.

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Appellant argued that the Office deducted $121.86 per month for health benefits
premiums rather than $92.52. Computer worksheets, however, support that the Office deducted
$92.52 for health benefits premiums during the applicable time period.7 Appellant has not
submitted any evidence in support of her contention that the Office erred in its calculation of the
overpayment.
Appellant additionally argued that the Office did not provide its calculation of
overpayment in the decision. The Board notes, however, that in the November 20, 2006
preliminary notification of overpayment, the Office referenced an accompanying memorandum
to the file that set forth in detail the calculation of the overpayment.
LEGAL PRECEDENT -- ISSUE 2
Under section 8129 of the Federal Employees’ Compensation Act8 and the implementing
regulations, an overpayment must be recovered unless incorrect payment has been made to an
individual who is without fault and when adjustment or recovery would defeat the purpose of the
Act or would be against equity and good conscience.9
Section 10.431 of the implementing regulations provides that, before seeking to recover
an overpayment or adjust benefits, the Office will advise the individual in writing that the
overpayment exists and the amount of the overpayment.10 The written notification must also
include a preliminary finding regarding whether the individual was at fault in the creation of the
overpayment.11 Additionally, the Office is obliged to advise the individual of his or her right to
inspect and copy the government records relating to the overpayment.12 Lastly, the preliminary
notice must inform the individual of his or her right to challenge the fact or amount of the
overpayment, the right to contest the preliminary finding of fault in the creation of the
overpayment, if applicable, and the right to request a waiver of recovery of the overpayment.13
The recipient of the alleged overpayment may present evidence in response to the Office’s
preliminary notice either in writing or at a prerecoupment hearing.14 The evidence must be
presented or the hearing requested within 30 days of the date of the written notice of

7

The Office deducted $92.52 for health insurance premiums, $14.40 for basic life insurance and $14.94 for
optional life insurance, a total of $121.86.
8

5 U.S.C. §§ 8101-8193.

9

5 U.S.C. § 8129(b); 20 C.F.R. §§ 10.433, 10.434, 10.436, 10.437.

10

20 C.F.R. § 10.431(a).

11

Id. at § 10.431(b).

12

Id. at § 10.431(c).

13

Id. at 10.431(d).

14

Id. at § 10.432.

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overpayment.15 Failure to request the hearing within this 30-day time period shall constitute
waiver of that right.16
Office procedures provide as follows:
“a. When a preliminary finding on the question of fault is made, the OE will
prepare a memorandum for the file stating the finding and the rationale. The OE
will then immediately release the preliminary finding (Form CA-2201 or Form
CA-2202), which informs the claimant of the fact and amount of the
overpayment, and of the preliminary finding on the question of fault.”17
***
“(1) If the claimant is determined to be with fault, Form CA-2201 must be
released (along with an OWCP-20) within 30 days of the date the
overpayment is identified. Both the reason that the overpayment occurred
and the reason for the finding of fault must be clearly stated. Form CA2201 informs the claimant of the right to submit evidence and the right to
a prerecoupment hearing on the issues of a) fact and amount of the
overpayment; b) fault; and c) waiver. Along with Form CA-2201, the OE
should provide a clearly written statement explaining how the
overpayment was calculated.
(2) If the claimant is determined to be without fault, Form CA-2202 must
be released (along with an OWCP-20) within 30 days of the date the
overpayment is identified. This letters advises the claimant of the fact and
amount of the overpayment, and of the preliminary finding that the
claimant is without fault in the creation of the overpayment. The reason
that the overpayment occurred must be clearly stated in the preliminary
decision and the OE should provide a clearly written explanation
indicating how the overpayment was calculated.”18
ANALYSIS -- ISSUE 2
The Office informed appellant on November 20, 2006 of its preliminary determination
that she was without fault in the creation of the overpayment. In its March 12, 2007 decision,
however, the Office determined that she was at fault in creating the overpayment.

15

Id.

16

Id.

17

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.4a
(May 2004).
18

Id.

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The Office’s regulations provide that, before seeking to recover an overpayment or adjust
benefits, the Office will advise the individual in writing that the overpayment exists and the
amount of the overpayment.19 The written notification must also include a preliminary finding
regarding whether the individual was at fault in the creation of the overpayment.20 The Office
must inform the individual of his or her right to challenge the fact or amount of the overpayment,
the right to contest the preliminary finding of fault in the creation of the overpayment, if
applicable, and the right to request a waiver of recovery of the overpayment.21 The Office’s
procedure manual further provides that a preliminary finding of overpayment must be provided
within 30 days and must clearly identify the reason that the overpayment occurred and the basis
for any fault finding.22
The Office issued a final decision which changed the preliminary finding that she was
without fault to a finding of fault in creating the overpayment. According to the Office’s
implementing regulations and its procedure manual, the Office should have reissued a
preliminary determination if it was changing its determination of fault before finalizing a fault
finding. Consequently, the Board finds that the Office failed to follow its regulations in
changing the fault determination. The case is remanded for the Office to issue a preliminary
determination on the issue of fault and waiver.23
CONCLUSION
The Board finds that the Office properly determined that appellant received an
overpayment of $1,005.00 because it deducted health insurance premiums for single rather than
family coverage from January 22 to September 2, 2006. The Board further finds that the case is
not in posture for decision on the issue of whether appellant was at fault in creating the
overpayment as the Office found that she was at fault in its overpayment decision without
providing her with proper notice.

19

20 C.F.R. § 10.431(a).

20

Id. at § 10.431(b).

21

Id. at § 10.431(d).

22

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.4(a)(1) (May 2004).
23

In view of the Board’s disposition on the issue of fault, the issue of whether the Office properly determined that
it would withhold $300.00 per month from appellant’s continuing compensation to repay the overpayment is
premature.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 12, 2007 is affirmed in part and set aside in part and the
case is remanded for further proceedings consistent with this opinion of the Board.
Issued: October 24, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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