United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.J., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, Seaside, CA, Employer
__________________________________________

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

Docket No. 19-0801
Issued: September 16, 2019

Case Submitted on the Record

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

JURISDICTION
On March 1, 2019 appellant filed a timely appeal from a January 14, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish an emotional
condition in the performance of duty.
FACTUAL HISTORY
On August 29, 2018 appellant, then a 53-year-old information technology (IT) specialist,
filed a traumatic injury claim (Form CA-1) alleging that on August 23, 2018 he sustained
“unbearable and life-threatening” emotional distress due to a hostile work environment, with
1

5 U.S.C. § 8101 et seq.

professional embarrassment and fear of reprisals, and retaliation by upper management. He
described the nature of his claimed injury as extreme headaches, dizziness, mental fog, nausea,
sleep deprivation, lack of concentration, and overall extreme fatigue. On the reverse side of the
claim form the employing establishment controverted the claim on causation.
In support of his claim, appellant submitted a witness statement dated August 26, 2018
from L.H., a student trainee. L.H. noted that he personally witnessed appellant’s immediate
emotional distress caused by a hostile work environment/event. He related that a senior
organizational management team member displayed serious offensive conduct during a formal
meeting. This team member berated and belittled appellant in front of him, his immediate
supervisor, and others participating in the meeting, with the apparent intent to personally and
professionally embarrass him. L.H. instantaneously witnessed the stress appellant experienced
due to this hostile incident. He indicated that appellant continued to experience this same
emotional distress, which was visibly clear in his demeanor.
In a development letter dated September 5, 2018, OWCP informed appellant of the
deficiencies of his claim. It advised him of the type of factual and medical evidence needed to
establish his claim and provided a questionnaire for his completion. Appellant was afforded 30
days to respond.
OWCP subsequently received medical evidence addressing appellant’s diagnosed
emotional conditions and resultant disability and a September 5, 2018 response to the development
questionnaire. Appellant indicated that his claimed injury occurred around 1:25 p.m. on
August 23, 2018 while he was in the performance of his official duties as a senior IT specialist.
He further indicated that he was invited to attend an official teleconference meeting coordinated
by the Enterprise Services Directorate (ESD) Information Technology Governance (ITG) Division
Director to provide a project status update. Appellant related that his professional role during the
teleconference was Lead ESD Point of Contact (POC) for a very high profile project. He noted
that his Form CA-1, witness statements, and an accompanying grievance memorandum dated
August 26, 2018 described how his claimed traumatic injury occurred. Appellant listed the
physicians who had treated him. He maintained that the immediate effects of his claimed workrelated injury included a complete mental breakdown that directly resulted from abusive senior
management behavior through the use of intimidation, public bullying, professional belittlement,
and extreme humiliation. Appellant described additional symptoms he experienced after the
August 23, 2018 incident, including a profound fear of more abusive behavior, intimidation tactics,
and “sneaky staged setups” in an effort to render him professionally incompetent.
In the August 26, 2018 memorandum, appellant noted that, during the August 23, 2018
teleconference, J.W., his supervisor, invited J.M., an ESD deputy director, to address the group.
He contended that J.M. spoke directly to him in a very rude, condescending, and unprofessional
tone and he also berated, belittled, intimidated, and thoroughly embarrassed him. Appellant
considered J.M.’s conduct offensive and unfounded as there was no context or reason for the
attack. He further contended that J.M. deliberately disrespected him in front of other employees,
including a student trainee he had been professionally mentoring. Appellant maintained that J.M.
deliberately chose to make him the center of attention and proceeded to bully him in front of the
meeting attendees. He asserted that J.M. asked him, “you do know you are the Directorate Lead?
You probably don’t even know what that means! Do I need to explain it to you?” Appellant

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claims he immediately felt demoralized in front of his team members and paralyzed by a state of
shock. He claimed that, after this hostile incident, a team member said to him, “he just roasted
you in front of the group; what the f**k is wrong with him? [J.W.] just set you up.” Appellant
further claimed that even his mentee realized that he was inappropriately disrespected and bullied
by the highest levels of management from their directorate. He felt that J.W. had staged the entire
event to have him attacked and belittled by her longtime friend, J.M., in front of the entire group.
Appellant also felt exposed and vulnerable by the collusive nature of these managers in
manipulating the events of the meeting. He requested that a formal grievance be initiated to
remove J.M. and J.W. from federal service.
Appellant submitted an additional witness statements dated August 24, 2018 from L.H. and
August 29, 2018 from B.T., a supervisory enterprise architect at the employing establishment,
indicating that on August 23, 2018 they witnessed J.M. verbally attack appellant in an extremely
unprofessional and disrespectful manner in front of ESD employees during a teleconference
meeting. L.H. noted that J.M. berated appellant for not “ccing” him on his response to an email
from J.M. He noted that everyone was still on the line and in the room. L.H. related that he never
believed the warnings he had been given to be careful about what he stated and how it was stated
because J.M. may be listening on the line. B.T. indicated that J.M. put down appellant with a very
loud, snarky, and degrading speech pattern when he told appellant that, “you know you’re the lead,
do you even know what that means!” He then described appellant’s emotional reaction to this
incident.
Appellant also submitted medical evidence addressing his diagnosed emotional conditions,
causal relationship, disability, and work capacity.
In a letter dated October 9, 2018, T.H., an injury compensation specialist at the employing
establishment, contended that appellant’s claim should be treated as an occupational disease claim
based on a physician’s note dated September 12, 2018, which indicated that he complained of
stress at work that had been accumulating over the past two years.
OWCP, by development letter dated October 11, 2018, requested that the employing
establishment respond to appellant’s allegations and provide his work duties and accommodations
it made to reduce his stress.
OWCP continued to receive medical evidence relative to appellant’s diagnosed emotional
conditions, causal relationship, and work capacity.
In a letter dated October 16, 2018, B.T. responded to OWCP’s October 11, 2018
development letter. He deferred to appellant to determine what aspects of his job were stressful.
B.T. related that no official accommodations were made through the organization’s
accommodation office for appellant. He further related that no staffing shortages affected his
workload or placed extra demands on him during the period he claimed detrimental work factors
existed. B.T. indicated that, after the alleged incident, appellant was unable to perform his duties.
Appellant remained on leave under the oversight of medical professionals. B.T. indicated that

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appellant had no record of performance or conduct problems. He submitted duplicate copies of
his August 29, 2018 witness statement and L.H.’s August 24, 2018 witness statement.2
In a letter dated October 29, 2018, T.H. also responded to OWCP’s development letter.
She cited Board precedent and contended that appellant’s self-generated response to the manner
in which his supervisor exercised his supervisory discretion fell outside the scope of coverage
provided by FECA. T.H. reiterated her prior contention regarding the nature of appellant’s claim.
OWCP, by letter dated December 11, 2018, requested additional information from the
employing establishment regarding the alleged August 23, 2018 incident.
In a response letter dated January 9, 2019, T.H. noted that there had been no ﬁnding of
error or abuse by the employing establishment regarding the August 23, 2018 incident. She further
noted that counsel for the employing establishment did not warn or reprimand the deputy director
with regard to this incident. T.H. indicated that no Equal Employment Opportunity (EEO)
complaint was filed regarding the claimed incident, but a grievance had been filed. An
investigation determined that the grievance was unfounded.
By decision dated January 14, 2019, OWCP denied appellant’s claim finding that he had
not met his burden of proof to establish a compensable factor of employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To establish an emotional condition in the performance of duty, a claimant must submit:
(1) factual evidence identifying an employment factor or incident alleged to have caused or
contributed to his or her claimed emotional condition; (2) medical evidence establishing that he or
she has a diagnosed emotional or psychiatric disorder; and (3) rationalized medical opinion

2

B.T. related that a copy of appellant’s official position description accompanied his October 16, 2018 response
letter. However, no copy of appellant’s position description is found in the record of the case.
3

5 U.S.C. § 8101 et seq.

4

A.J., Docket No. 18-1116 (issued January 23, 2019); Gary J. Watling, 52 ECAB 278 (2001).

5
20 C.F.R. § 10.115(e); M.K., Docket No. 18-1623 (issued April 10, 2019); see T.O., Docket No. 18-1012 (issued
October 29, 2018); see Michael E. Smith, 50 ECAB 313 (1999).

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evidence establishing that the accepted compensable employment factors are causally related to
the diagnosed emotional condition.6
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment.7 There are situations where an injury or an illness
has some connection with the employment, but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to his or her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA.8 On the other hand, the disability
is not covered when it results from such factors as an employee’s fear of a reduction-in-force or
his or her frustration from not being permitted to work in a particular environment or to hold a
particular position.9
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.10 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.11
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.12
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be probative and reliable evidence that harassment or discrimination did in fact occur.13
Mere perceptions of harassment, retaliation, or discrimination are not compensable under FECA.14
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed compensable
factors of employment and are to be considered by a physician when providing an opinion on
6

See S.K., Docket No. 18-1648 (issued March 14, 2019); M.C., Docket No. 14-1456 (issued December 24, 2014);
Debbie J. Hobbs, 43 ECAB 135 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990).
7

T.G., Docket No. 19-0071 (issued May 28, 2019); L.D., 58 ECAB 344 (2007); Robert Breeden, 57 ECAB
622 (2006).
8
L.H., Docket No. 18-1217 (issued May 3, 2019); Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB
125 (1976).
9

A.E., Docket No. 18-1587 (issued March 13, 2019); Gregorio E. Conde, 52 ECAB 410 (2001).

10

See G.R., Docket No. 18-0893 (issued November 21, 2018); Andrew J. Sheppard, 53 ECAB 170-71 (2001), 52
ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990); reaff’d on recon., 42 ECAB 556 (1991).
11
See O.G., Docket No. 18-0359 (issued August 7, 2019); D.R., Docket No. 16-0605 (issued October 17, 2016);
William H. Fortner, 49 ECAB 324 (1998).
12

B.S., Docket No. 19-0378 (issued July 10, 2019); Ruth S. Johnson, 46 ECAB 237 (1994).

13

S.B., supra note 3; Marlon Vera, 54 ECAB 834 (2003).

14

S.B., id.; Kim Nguyen, 53 ECAB 127 (2001).

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causal relationship and which working conditions are not deemed compensable factors of
employment and may not be considered.15 If an employee does implicate a factor of employment,
OWCP should then determine whether the evidence of record substantiates that factor. As a rule,
allegations alone by a claimant are insufficient to establish a factual basis for an emotional
condition claim. The claim must be supported by probative evidence.16 If a compensable factor
of employment is substantiated, OWCP must base its decision on an analysis of the medical
evidence which has been submitted.17
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an emotional
condition in the performance of duty.
Appellant alleged that he experienced headaches, dizziness, mental fog, nausea, sleep
deprivation, lack of concentration, and overall extreme fatigue due to the actions of J.M. and J.W.
on August 23, 2018. The Board notes that appellant does not attribute his claimed emotional
condition to his regular or specially assigned duties as an IT specialist under Cutler.18 Rather,
appellant has alleged verbal abuse and harassment by management and error and abuse in an
administrative matter.
OWCP accepted that, during a teleconference meeting on August 23, 2018, J.M.
questioned appellant about his knowledge of his own position title, but found that this incident was
not a compensable factor of appellant’s federal employment.
Appellant primarily attributed his emotional condition to being asked questions by J.M. in
a very rude, condescending, and unprofessional tone concerning his knowledge of his position
title, and belittled, intimidated, embarrassed, and deliberately disrespected him in the presence of
his coworkers, during a teleconference meeting on August 23, 2018, which created a hostile work
environment. He also claimed that J.W. had staged this event to provide the director, J.M., her
longtime friend, an opportunity to attack and belittle him in front of the entire group. Appellant
maintained that he was demoralized and paralyzed in a state of shock by J.M.’s conduct. He also
felt exposed and vulnerable by his managers’ collusive nature in manipulating the events of the
meeting. Appellant feared more abusive behavior, intimidation tactics, sneaky staged setups,
reprisals, and retaliation by management to deem him professionally incompetent. He related that
a team member commented to him that J.M. had roasted him in front of the group. The team
member also questioned the J.M.’s behavior and alleged that Supervisor J.W. had set-up appellant.
Appellant noted that his mentee, L.H., also realized that he had been inappropriately disrespected
and bullied by a high-level management official.

15

Dennis J. Balogh, 52 ECAB 232 (2001).

16

Charles E. McAndrews, 55 ECAB 711 (2004).

17

Norma L. Blank, 43 ECAB 384, 389-90 (1992).

18

See supra note 8.

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The Board finds that appellant has not established his allegation that J.M. verbally abused
or harassed him on August 23, 2018. While appellant submitted witness statements from L.H. and
B.T., the Board finds that, despite appellant’s arguments that J.M. verbally attacked him, there was
no evidence that his comments or questions were unwarranted or constituted verbal abuse.19
Moreover, L.H.’s statement that he did not believe the warnings he had received to be careful about
what he said and how he said it because Deputy Director J.M. may be listening on the line, does
not relate to the issue whether Deputy Director J.M. verbally abused or harassed appellant.
Additionally, while appellant noted that a team member acknowledged to him that J.M. had
mistreated appellant in the presence of their group on August 23, 2018 and that J.W. had set
appellant up, he did not submit a witness statement from the team member to corroborate his
allegation of verbal abuse and collusion.20 For the foregoing reasons, the Board finds that appellant
has not met his burden of proof to establish a factual basis for his claim of verbal abuse harassment
on August 23, 2018 by probative and reliable evidence.
Appellant’s filing of a grievance, regarding the actions of J.M. and J.W., is an
administrative matter and not compensable absent a showing of error or abuse on the part of the
employing establishment.21 T.H., an employing establishment injury compensation specialist,
noted that an investigation conducted by the employing establishment determined that the
grievance was unfounded. She explained that there was no finding of error or abuse by the
employing establishment regarding the August 23, 2018 incident. In addition, T.H. explained that
J.W. was neither warned nor reprimanded with regard to this incident. Based on her statements,
the Board finds that appellant has failed to establish a compensable employment factor with regard
to the above-noted administrative matter.
The Board, therefore, finds that appellant has not met his burden of proof to establish a
compensable employment factor under FECA and, therefore, has not met his burden of proof to
establish that he sustained an emotional or stress-related condition in the performance of duty.22
As appellant has not established a compensable employment factor, the Board need not consider
the medical evidence of record.23
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

19

E.S., Docket No. 18-1493 (issued March 6, 2019).

20
Supra note 13. See also L.H., Docket No. 17-1295 (issued November 22, 2017); Joel Parker, Sr., 43 ECAB 220
(1991) (the Board held that a claimant must substantiate allegations of harassment or discrimination with probative
and reliable evidence).
21

J.E., Docket No. 17-1799 (issued March 7, 2018); Michael A. Salvato, 53 ECAB 666, 668 (2002).

22

E.M., Docket No. 19-0156 (issued May 23, 2019); F.C., Docket No. 18-0625 (issued November 15, 2018).

23

Y.B., supra note 8; Garry M. Carlo, 47 ECAB 299, 305 (1996).

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CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an emotional
condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the January 14, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 16, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
PROVIDENCE VA MEDICAL CENTER,
Providence, RI, Employer
__________________________________________

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

Docket No. 19-1571
Issued: December 31, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 10, 2019 appellant filed a timely appeal from an April 8, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $4,586.21 for the period July 11, 2016 through
1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the April 8, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

September 15, 2018 because she improperly received wage-loss compensation at an augmented
compensation rate to which she was not entitled; (2) whether it properly found appellant at fault
in the creation of the overpayment, thereby precluding waiver of recovery of the overpayment; and
(3) whether OWCP properly required recovery of the overpayment by withholding $478.52 every
28 days from appellant’s continuing compensation payments.
FACTUAL HISTORY
On July 14, 2011 appellant, then a 49-year-old nursing assistant, filed a traumatic injury
claim (Form CA-1) alleging that on July 8, 2011 she sustained an injury to her right shoulder,
when turning a patient while in the performance of duty. OWCP accepted the claim for right
shoulder sprain, partial tear of the right supraspinatus tendon, and a neck sprain. It paid appellant
wage-loss compensation on the supplemental rolls commencing October 24, 2011 and on the
periodic rolls commencing April 8, 2012.
In a letter dated August 1, 2012, OWCP requested that appellant complete an EN1032
form, which included questions regarding appellant’s dependents in order to verify that her
compensation was paid at the proper rate. It specifically indicated that compensation at the
augmented rate of 75 percent of the applicable pay rate may be paid for “an unmarried child,
including an adopted child or stepchild, who lives with you and is under 18 years of age.” OWCP
also advised that if she had no eligible dependents she would be paid at 66 2/3 percent of the
applicable pay rate. Appellant completed the form on August 10, 2012 and advised that she was
married and her husband lived with her, she also indicated that she had a dependent son who was
born on July 11, 1998.
Appellant continued to submit completed and signed EN1032 forms through October 28,
2015, indicating that she had an eligible dependent, her son, and as such, was entitled to receive
wage-loss compensation at the augmented rate.
On August 10, 2016 OWCP requested that appellant complete and return an updated
EN1032 form. It received the completed form on October 11, 2016. Appellant advised that her
son, born on July 10, 1998 had turned 18 and was no longer a dependent. She also noted that she
was not married and had no other dependents.
In a September 26, 2018 letter, OWCP advised appellant that on her EN1032 form of
August 20, 2018 she had indicated that she had no dependents, as her son born on July 10, 1998
and was thus 18 years of age in July 2016. It explained that she had been paid at the augmented
rate of 75 percent rather than at the basic compensation rate of 66 2/3 percent for the period July 11,
2016 through September 15, 2018. OWCP advised that, effective September 16, 2018, she would
be paid at the non-augmented compensation rate of 66 2/3 percent.
On December 6, 2018, OWCP advised appellant that it had made a preliminary
determination that she received an overpayment of compensation in the amount of $4,586.21 for
the period July 11, 2016 through September 15, 2018 because she received compensation at the
augmented three-fourths rate instead of the two-thirds rate when she had no dependents. It noted
that she had received a total of $31,430.72 for wage-loss compensation at the augmented rate based
on an eligible dependent from July 11, 2016 through September 15, 2018. Appellant, however,

2

was only entitled to receive $26,844.41 in compensation based on the appropriate two-thirds rate
for lack of an eligible dependent, resulting in a $4,586.21 overpayment.3 OWCP found that she
was with fault in the creation of the overpayment because she knew or reasonably should have
known that there was no entitlement to compensation at the augmented rate after her son turned18.
It indicated that appellant neglected to provide notification within 90 days of the dependency
change and knowingly continued to accept compensation payments at the augmented rate despite
such knowledge. OWCP enclosed an overpayment recovery questionnaire (Form OWCP-20) for
completion, advised appellant of her appeal rights, and afforded her 30 days to submit additional
evidence and respond to its inquiries. No further evidence was received.
By decision dated January 11, 20194 OWCP finalized its preliminary overpayment
determination, finding that appellant had received an overpayment of compensation in the amount
of $4,586.21 for the period July 11, 2016 through September 15, 2018 because she had improperly
received augmented compensation without having eligible dependents. It found her at fault in the
creation of the overpayment because she had neglected to provide notification of the dependency
change within 90 days, and, she continued to knowingly accept compensation at a rate to which
she was not entitled. Therefore, OWCP found that appellant was not entitled to waiver of recovery.
It required recovery of the overpayment by withholding $478.52 every 28 days from her continuing
compensation payments.
LEGAL PRECEDENT -- ISSUE 1
FECA provides that the United States shall pay compensation for the disability or death of
an employee resulting from a personal injury sustained while in the performance of duty.5 If the
disability is total, the United States shall pay the employee during the period of total disability the
basic compensation rate of 66 2/3 percent of her monthly pay. A disabled employee is entitled to
an augmented compensation rate of 75 percent if she has one or more dependents.6
A dependent includes an unmarried child who, while living with the employee or receiving
regular contributions from the employee toward his or her support, is either under 18 years of age
or over 18 years of age and incapable of self-support due to physical or mental disability.7 A child
is also considered a dependent if he or she is an unmarried student under 23 years of age who has

3
The record contains a manual adjustment form and worksheets regarding the dates and calculations of the
overpayment of compensation.
4

OWCP provided appellant copies of the January 11, 2019 decision with appeal rights on April 8, 2019 after
appellant informed OWCP by telephone call on April 8, 2019 (Form CA-110) that she had questions about the
overpayment issues and always had problems with her mail.
5

5 U.S.C. § 8102(a).

6

R.G., Docket No. 18-1251 (issued November 26, 2019); O.R., 59 ECAB 432, 436 (2008); id. at §§ 8105(a) and
8110(b).
7

Id. at § 8110(a).

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not completed four years of education beyond the high school level and is currently pursuing a
full-time course of study at a qualifying college, university, or training program.8
If a claimant received compensation at the augmented rate during a period when he or she
did not have an eligible dependent, the difference between the compensation that was disbursed at
the 75 percent augmented rate and the compensation that should have been disbursed at the 66 2/3
percent basic rate constitutes an overpayment of compensation.9
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $4,586.21 for the period July 11, 2016 through September 15,
2018 because she received wage-loss compensation at an augmented compensation rate to which
she was not entitled.
The evidence of record reflects that appellant continued to receive compensation at the
augmented rate from July 11, 2016 through September 15, 2018, despite the fact that her son, who
was initially claimed as a dependent, turned 18 years old on July 10, 2016 and, therefore, no longer
qualified as a dependent under FECA.
Compensation records confirm that OWCP continued to pay appellant compensation at the
augmented rate from July 11, 2016 through September 15, 2018, which amounted to a total of
$31,430.72. Appellant, however, was only entitled to receive $26,844.51 in compensation at the
basic rate, resulting in an overpayment in the amount of $4,586.21. Accordingly, the Board finds
that OWCP properly determined that she received an overpayment of compensation in the amount
of $4,586.21 for the period July 11, 2016 through September 15, 2018.
LEGAL PRECEDENT -- ISSUE 2
5 U.S.C. § 8129(b) provides: “Adjustment or recovery by the United States may not be
made when incorrect payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of FECA or would be against equity and good
conscience.”10 A claimant who is at fault in the creation of the overpayment is not entitled to
waiver.11 On the issue of fault 20 C.F.R. § 10.433(a) provides that an individual will be found at
fault if he or she has done any of the following: (1) made an incorrect statement as to a material
fact which he or she knew or should have known to be incorrect; (2) failed to provide information

8

R.G., supra note 6; see also E.G., 59 ECAB 599, 603 n.10 (2008).

9

S.D., Docket No. 17-0309 (issued August 7, 2018; Ralph P. Beachum, Sr., 55 ECAB 442, 445 (2004).

10

5 U.S.C. § 8129(b).

11

See C.Y., Docket No. 18-0263 (issued September 14, 2018).

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which he or she knew or should have known to be material; or (3) accepted a payment which he
or she knew or should have known was incorrect.12
With respect to whether an individual is without fault, section 10.433(b) of OWCP’s
regulations provide that whether or not OWCP determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those circumstances
and the individual’s capacity to realize that he or she is being overpaid.13
The Board has held that an employee who receives payments from OWCP in the form of
direct deposit may not be at fault the first or second time incorrect funds are deposited into his or
her account, as the acceptance of the resulting overpayment may lack the requisite knowledge.14
The Board has also held in cases involving a series of incorrect payments, where the requisite
knowledge is established by a letter or telephone call from OWCP or simply with the passage of
time and a greater opportunity for discovery, the claimant will be at fault for accepting the
payments subsequently deposited.15 Previous cases have held that receiving one or two erroneous
direct deposit payments does not necessarily create the requisite knowledge to find that a claimant
was at fault in the creation of the overpayment.16
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly determined that appellant was at fault in the creation
of the overpayment of compensation for the period August 21, 2016 through September 15, 2018,
thereby precluding waiver of recovery of the overpayment for this period. However, OWCP
improperly determined that appellant was at fault in the creation of the overpayment of
compensation for the period July 11 through August 20, 2016.
OWCP found that appellant was at fault in the creation of the overpayment because she
accepted payments she knew or should have known to be incorrect as she was aware that she was
not entitled to augmented compensation when she no longer had an eligible dependent as of
July 11, 2016. The Board finds, however, that OWCP failed to establish that, at the time she
accepted the first two electronic direct deposits of compensation covering the period of the

12

20 C.F.R. § 10.433(a).

13

Id. at § 10.433(b); see also D.M., Docket No. 17-0983 (issued August 3, 2018).

14

See A.B., Docket No. 18-0922 (issued January 3, 2019); S.D., supra note 9; V.S., Docket No. 13-1278 (issued
October 23, 2013); Tammy Craven, 57 ECAB 689 (2006).
15

See C.H., Docket No. 19-1470 (issued January 24, 2020); Tammy Craven, id.

16
K.K., Docket No. 19-0978 (issued October 21, 2019); see D.B., Docket No. 16-0258 (issued February 1, 2016);
W.P., 59 ECAB 514 (2008).

5

overpayment from July 11 through August 20, 2016, she knew or should have known the payments
were incorrect.17
Appellant received compensation by direct deposit payments every 28 days. The evidence
of record does not establish that, as of the first and second direct deposits of compensation, she
knew or should have reasonably known that she was accepting payments containing monies to
which she was not entitled. There is no documentation or other evidence to demonstrate that
appellant had clear knowledge at the time she received the direct deposits from OWCP on July 23
and August 20, 2016, collectively covering the period of the overpayment from July 11, 2016
through August 20, 2016, that a portion of the payment was incorrect, or that a reasonable period
of time passed during which she could have reviewed bank statements or been informed of the
incorrect payments. The Board notes that in a number of direct deposit cases the Board has only
found the claimant without fault with respect to the period covered by the first direct deposit.18
However, the particular facts of the present case dictate that appellant be found without fault with
respect to the period covered by the first and second direct deposits.19 The first direct deposit
(received on July 23, 2016) only contained improper monies paid for a short period July 11 to 23,
2016 which were paid at the improper augmented rate of 75 percent rate) and OWCP failed to
show that appellant knew or should have reasonably known that this payment contained such
limited improper monies. Although the second direct deposit (received on August 20, 2016)
covered 28 days of compensation paid at the improper augmented rate of 75 percent (July 24
through August 20, 2016), OWCP also failed to show that appellant knew or should have
reasonably known that this payment was improper, either through documentation from OWCP or
through the passage of time. While appellant untimely submitted the completed the EN1032 form,
she properly notified OWCP of the change in her son’s dependent status. Therefore, the Board
finds that she is not at fault in the acceptance of the direct deposits covering the period of the
overpayment from July 11 through August 20, 2016.
Even though OWCP may have been negligent in making incorrect payments, this does not
excuse a claimant from accepting payments he or she knew or should have known to be incorrect.20
In cases involving a series of incorrect payments, where the requisite knowledge is established by
documentation from OWCP and/or simply with the passage of time and opportunity for discovery,
the claimant will be at fault for accepting the payments subsequently deposited.21
By the time appellant received the compensation payment electronically transferred on
September 17, 2016 (covering the period August 21 to September 17, 2016), she knew or should
have reasonably known both that she was not entitled to receive compensation at the augmented
17

The first electronic direct deposit covered the period June 26 to July 23, 2016; the second direct deposit covered
the period July 24 to August 20, 2016.
18

See e.g., Tammy Craven, supra note 14.

19

See generally V.S., supra note 14.

20

P.B., Docket No. 19-0329 (issued December 31, 2019); see C.G., Docket No. 15-0701 (issued December 9,
2015); see also William E. McCarty, 54 ECAB 525 (2003).
21
See K.P., Docket No. 19-1151 (issued March 18, 2020); J.W., Docket No. 10-1271 (issued February 3, 2011);
Karen Dixon, 56 ECAB 145 (2004).

6

rate of 75 percent and that the September 17, 2016 compensation payment contained monies to
which she was not entitled. The August 10, 2016 cover letter for the EN1032 form advised that
the form must be completed and returned within 30 days of the letter. The Board notes that enough
time had passed since appellant’s receipt of the August 10, 2016 letter and EN1032 form, with a
concurrent opportunity of discovery, that appellant realized or should have reasonably realized
that the September 17, 2016 payment contained monies to which she was not entitled (i.e., the
difference between the augmented rate (75 percent of her wage loss) and the basic compensation
rate (66 2/3 percent)).22 Because she accepted a payment which she knew or should have known
to be incorrect for the period August 21, 2016 through September 15, 2018, the Board finds that
appellant is not entitled to waiver of recovery of the portion of the overpayment created during
this period.23
Accordingly, the Board will affirm the finding of fault for the remaining August 21, 2016
through September 15, 2018 period of overpayment, thereby precluding waiver of recovery of the
overpayment for this period. The Board will set aside the January 11, 2019 decision regarding the
issue of fault as to the July 23 and August 20, 2016 direct deposits covering the period July 11
through August 20, 2016 and will remand the case for OWCP to determine whether appellant is
entitled to waiver of recovery for the portion of the overpayment covering the period July 23
through August 20, 2016.24
On appeal appellant contends that she was not at fault in the creation of the overpayment
of compensation because she had completed the required report advising OWCP that her son had
turned 18. She also indicated that she does not know how much money she should be receiving
as it is a different amount each month. However, even if the overpayment resulted from negligence
on the part of OWCP, this does not excuse appellant from accepting payment which she knew or
should have known she was not entitled to.25
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $4,586.21 for the period July 11, 2016 through September 15,
2018 because she improperly received wage-loss compensation at an augmented compensation
rate to which she was not entitled. The Board further finds that she was at fault in the creation of
the overpayment for the period August 21, 2016 through September 15, 2018, and that she was
without fault in the creation of the overpayment for the period July 11 through August 20, 2016.
The case will be remanded to OWCP to consider waiver of recovery of the overpayment for the
period July 11 through August 20, 2016.

22

See supra note 9.

23

See V.S., supra note 14.

24

In light of the Board’s determination regarding the issues of fault and waiver of recovery of the overpayment, it
is premature to address the issue of recovery of the overpayment.
25

Supra note 21; Russell E. Wageneck, 46 ECAB 653 (1995).

7

ORDER
IT IS HEREBY ORDERED THAT the April 8, 2019 decision of the Office of Workers’
Compensation Programs is affirmed in part and reversed in part and set aside in part and the case
is remanded to OWCP for further proceedings consistent with this decision of the Board.
Issued: December 31, 2020
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PATROL,
San Ysidro, CA, Employer
__________________________________________

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

Docket No. 20-0333
Issued: July 14, 2020

Case Submitted on the Record

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

JURISDICTION
On November 29, 2019 appellant filed a timely appeal from a July 30, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the July 30, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish a recurrence of the
need for medical treatment causally related to his accepted February 18, 2014 employment injuries.
FACTUAL HISTORY
On February 18, 2014 appellant, then a 35-year-old border patrol agent, filed a traumatic
injury claim (Form CA-1) alleging that, on that same day, he injured his right shoulder and neck
while in the performance of duty. He explained that he was walking through rough terrain in the
dark when a rock rolled from under his foot and caused him to fall. Because he was carrying a
M4 carbine, appellant indicated that he was unable to break his fall and landed hard on his right
shoulder. He did not stop work.
On June 13, 2014 OWCP accepted appellant’s claim for a sprain of the neck, shoulder and
upper arm, unspecified site, right and a sprain of the shoulder and upper arm, other specified sites,
right.
In a June 27, 2014 medical report, Dr. Mark Selecky, a Board-certified orthopedic surgeon,
examined appellant for pain related to the traumatic sprain/strain of his right shoulder and cervical
spine and noted that he felt about 85 percent recovered, but still experienced stiffness and soreness.
He opined that appellant’s neck and shoulder injuries were clearly interrelated to the same
industrial injury and recommended that appellant continue physical therapy and seek chiropractic
treatment. Dr. Selecky advised that appellant could continue his regular work duties as tolerated.
In a work capacity evaluation (Form OWCP-5c) of even date, he noted a diagnosis of a right
shoulder/neck sprain and checked a box marked “Yes” to indicate his opinion that appellant was
capable of performing his usual job.
In an August 8, 2014 medical report, Dr. Selecky evaluated appellant’s neck and shoulder
injury after his initial visits with a chiropractor. On evaluation he recommended that appellant
continue with additional chiropractic appointments and ordered a magnetic resonance imaging
(MRI) scan of his cervical spine as he was still symptomatic six months after his injury. In a Form
OWCP-5c of even date, Dr. Selecky checked a box marked “Yes” to indicate his opinion that
appellant was capable of performing his usual job.
In a September 26, 2014 Form OWCP-5c, Dr. Selecky again indicated that appellant was
capable of performing his full duties at work.
In an October 9, 2014 operative note, Dr. Kenneth Romero, a Board-certified
anesthesiologist, indicated that appellant underwent a cervical epidural steroid injection in order
to treat his cervical radiculitis, cervical disc protrusions at C5-6 and C6-7, cervicalgia and cervical
facet pain.
In a December 18, 2018 medical report, Dr. Rae Davis, Board-certified in pain medicine,
evaluated appellant for his worsening lower back pain and right buttock pain. He noted that
appellant had this injury for several years and treated it with medications, physical therapy, and
injections. Appellant requested to return to physical therapy as his pain had worsened over the

2

last several weeks and informed him that he suspected his pain was due to an exacerbation of his
lumbar radiculopathy due to his disc herniation. On evaluation Dr. Davis assessed spondylosis
without myelopathy or radiculopathy in the lumbosacral region, intervertebral disc disorders with
radiculopathy in the lumbar region, and lumbago/low back pain. He ordered an updated lumbar
MRI scan and referred appellant to physical therapy.
In a January 2, 2019 medical report, Dr. Davis evaluated appellant for his right-sided neck
pain caused when he fell down a hill several days prior. He assessed myalgia, myofascial pain
syndrome, cervical facet joint pain, and cervicalgia and referred appellant to physical therapy to
treat his symptoms.
In a March 6, 2019 report of contact, OWCP noted that appellant called in to request an
authorization, but was advised that the case had been closed.
On April 4, 2019 appellant filed a notice of recurrence (Form CA-2a) for medical treatment
alleging that on December 1, 2018 he sustained a recurrence of his February 18, 2014 injury. He
indicated that, following his original injury, he was not limited in performing his usual work duties.
Appellant noted that, with treatment, including physical therapy, chiropractic care, and an
injection, his symptoms were initially alleviated until they no longer had a significant impact on
his life. However, over the past several months his symptoms had worsened and caused
considerable discomfort. Appellant explained that his doctor warned him that his symptoms may
return due to the nature of his injury. He also noted that he had filed a separate claim for a lower
back injury he suffered in 2014.3 On the reverse side of the claim form, the employing
establishment acknowledged that following the original injury no accommodations or adjustments
in appellant’s regular duties related to the original work injury were made.
In an April 9, 2019 statement, appellant explained that the recurrence of his February 2014
neck and right shoulder injuries was a gradual worsening of his symptoms. He provided that his
symptoms never went away completely, but were reduced with treatment to a point where he felt
they did not warrant further treatment at that time. Appellant reported experiencing the same
symptoms he experienced with his original injury, including pain, stiffness, reduced range of
motion, tension, and nausea.
In a development letter dated June 19, 2019, OWCP advised appellant of the deficiencies
of his recurrence claim. It informed him of the type of factual and medical evidence needed and
provided a questionnaire for his completion. OWCP afforded appellant 30 days to submit the
requested evidence.
In a July 12, 2019 medical report, Dr. Davis noted that appellant’s symptoms related to his
neck pain remained unchanged. He assessed cervical facet joint pain, cervicalgia, and cervical
myofascial pain syndrome and referred appellant to physical therapy.

3

The Board notes that appellant has a prior accepted traumatic injury claim for displacement of lumbar
intervertebral disc without myelopathy and lumbar radiculopathy related to a September 1, 2014 employment injury
under OWCP File No. xxxxxx080.

3

By decision dated July 30, 2019, OWCP denied appellant’s recurrence claim for medical
treatment finding that the evidence of record was insufficient to establish a worsening of the
accepted work-related conditions or a return of disability/increased disability as a result of a
consequential injury or condition related to his accepted conditions.
LEGAL PRECEDENT
A recurrence of a medical condition means a documented need for further medical
treatment after release from treatment for the accepted condition or injury when there is no
accompanying work stoppage.4 An employee has the burden of proof to establish that he or she
sustained a recurrence of a medical condition that is causally related to his or her accepted
employment injury without intervening cause.5
If a claim for recurrence of medical condition is made more than 90 days after release from
medical care, a claimant is responsible for submitting a medical report supporting a causal
relationship between the employee’s current condition and the original injury in order to meet his
or her burden of proof.6
To meet this burden the claimant must submit medical evidence from a physician who, on
the basis of a complete and accurate factual and medical history, supports that the condition is
causally related and supports his or her conclusion with sound medical rationale.7 Where no such
rationale is present, medical evidence is of diminished probative value.8
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a recurrence of
the need for medical treatment causally related to his accepted February 18, 2014 employment
injuries.
In support of his recurrence claim, appellant submitted Dr. Davis’ December 18, 2018
medical report in which he was evaluated for worsening pain in his lower back and right buttock.
Dr. Davis noted that appellant had received several years of medications, physical therapy, and
injections to treat his condition. Appellant also informed Dr. Davis that he suspected that his pain
was due to an exacerbation of lumbar radiculopathy due to disc herniation. On evaluation
Dr. Davis assessed spondylosis without myelopathy or radiculopathy in the lumbosacral region,
intervertebral disc disorders with radiculopathy in the lumbar region, and lumbago/low back pain.
He, however, did not provide a definite opinion on causal relationship between appellant’s various
4

20 C.F.R. § 10.5(y).

5
M.P., Docket No. 19-0161 (issued August 16, 2019); E.G., Docket No. 18-1383 (issued March 8, 2019); T.B.,
Docket No. 18-0762 (issued November 2, 2018); E.R., Docket No. 18-0202 (issued June 5, 2018).
6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.4(b) (June 2013); see also
J.M., Docket No. 09-2041 (issued May 6, 2010).
7

A.C., Docket No. 17-0521 (issued April 24, 2018); O.H., Docket No. 15-0778 (issued June 25, 2015).

8

O.H., id.; Michael Stockert, 39 ECAB 1186 (1988); see Ronald C. Hand, 49 ECAB 113 (1997).

4

diagnosed conditions and his accepted employment conditions as required to establish appellant’s
recurrence claim.9 Furthermore, Dr. Davis did not offer a medical explanation of how the accepted
conditions for which appellant last received treatment resulted in further diagnoses and need for
additional treatment several years later.10 Finally, he failed to explain that appellant’s current need
for further medical care was due to his accepted February 18, 2014 employment conditions.11
Therefore, this report is insufficient to establish appellant’s recurrence claim.
In his remaining medical evidence dated January 2 and July 12, 2019, Dr. Davis evaluated
appellant for right-sided neck pain caused when he fell down a hill. He diagnosed myalgia,
myofascial pain syndrome, cervical facet joint pain, and cervicalgia. To establish his claim,
appellant must submit rationalized medical evidence relating his chronic pain syndrome to his
accepted back conditions.12 However, the Board notes that this medical evidence describes an
intervening incident in which appellant fell down a hill.13 The Board has found that a recurrence
of disability does not occur where the claimant’s work stoppage is caused by a new or intervening
injury, even if the new injury involves the same part of the body previously injured.14 Accordingly,
Dr. Davis’ remaining medical evidence is also insufficient to establish appellant’s recurrence
claim.
As the medical evidence of record does not contain a rationalized medical opinion
establishing that appellant required further medical care after December 1, 2018 causally related
to his accepted February 18, 2014 employment injury, the Board finds that appellant has not met
his burden of proof to establish his recurrence claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a recurrence of
the need for medical treatment causally related to his accepted February 18, 2014 employment
injuries.

9

See H.A., Docket No. 18-1466 (issued August 23, 2019) (medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of no probative value on the issue of causal relationship).
10

See id. (medical evidence must also include rationale explaining how the physician reached the conclusion he or
she is supporting).
11

T.M., Docket No. 18-1418 (issued February 7, 2019).

12

Charles D. Gregory, 57 ECAB 322 (2006).

13

See supra note 6 at Chapter 2.1500.3(c)(5) (June 2013); see also V.H., Docket No. 18-0456 (issued
August 9, 2019).
14

See V.H., id.

5

ORDER
IT IS HEREBY ORDERED THAT the July 30, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 14, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hartford, CT, Employer
__________________________________________

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

Docket No. 12-1269
Issued: January 16, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 14, 2012 appellant filed a timely appeal from an April 19, 2012 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has established that she sustained a permanent impairment
warranting a schedule award.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the April 19, 2012 schedule award
decision. Since the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final
decision, the Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D.
Pruitt, 57 ECAB 126 (2005). Appellant may submit that evidence to OWCP along with a request for
reconsideration.

FACTUAL HISTORY
On December 18, 2008 appellant, then a 45-year-old letter carrier, filed a traumatic injury
claim alleging that she sustained injuries to her elbow, lower back and hip when she fell down
the stairs after slipping on black ice at work. She stopped work and received wage-loss
compensation. OWCP accepted appellant’s claim for left elbow contusion, back sprain and neck
sprain.
In July 16 and August 6, 2010 reports, Dr. Joseph M. Sohn, a Board-certified orthopedic
surgeon, related appellant’s complaints of low back pain and intermittent radicular symptoms.
Examination of the spinal column revealed tenderness upon palpation and limited truncal range
of motion. Dr. Sohn observed no motor or sensory deficits in the lower extremities. Distal
pulses were 2/4 in the lower extremities bilaterally. Dr. Sohn diagnosed lumbar spondylosis and
lumbar radiculitis with intermittent radiculitis and myofascial pain.
In an October 11, 2010 report, Dr. Sohn noted appellant’s complaints of persistent back
pain as a result of a work-related injury. Appellant was on a permanent lifting restriction of 20
pounds. Dr. Sohn stated that she reached maximum medical improvement and opined that she
had a permanent partial disability rating of five percent to her lumbar spine based on the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) (6th ed. 2008).
On January 24, 2011 appellant requested a schedule award.
On February 18, 2011 OWCP referred the case, together with a statement of accepted
facts, to Dr. Christopher R. Brigham, a Board-certified orthopedic surgeon and medical adviser.
He was asked to address whether appellant sustained any permanent impairment as a result of
her accepted injuries and the extent of any permanent impairment in accordance with the sixth
edition of the A.M.A., Guides.
In a March 2, 2011 report, Dr. Brigham accurately described appellant’s December 18,
2008 work-related injury and reviewed her medical history, including Dr. Sohn’s October 11,
2010 impairment evaluation. He stated that Dr. Sohn’s impairment rating did not conform to
OWCP regulations as it was assigned for the spine and expressed as a whole person rating and
not according to the specific instructions in the A.M.A., Guides and The Guides Newsletter.
Utilizing Table 15-4, the Elbow Regional Grid, on page 398 of the A.M.A., Guides (6th ed.
2008), Dr. Brigham determined that appellant had a class 0 rating for her elbow contusion with
no significant symptoms, which resulted in a rating of 0 percent upper extremity impairment.
According to Table 15-33, page 474, he also noted that appellant had 0 percent upper extremity
impairment because there were no reported motion deficits of the left elbow. Thus, Dr. Brigham
concluded that appellant did not suffer any permanent impairment to her left elbow. Regarding
permanent impairment for the lumbar spine, he referenced The Guides Newsletter,
July/August 2009 the sixth edition of the A.M.A., Guides for spinal nerve extremity impairment
and explained that the process for rating peripheral nerve injuries of the upper and lower
extremities was found in page 430 of the A.M.A., Guides. Dr. Brigham determined that there
was zero percent lower extremity impairment related to appellant’s spinal injury because
Dr. Sohn reported that there were no motor or sensory deficits in the lower extremity. He stated

2

that she reached maximum medical improvement on October 11, 2010 the date of Dr. Sohn’s
examination.
On March 9, 2011 OWCP referred the case to Dr. Balazs B. Somogyi, a Board-certified
orthopedic surgeon, for a second opinion examination to determine whether appellant sustained
any permanent impairment as a result of her accepted injuries and the extent of any permanent
impairment in accordance with the A.M.A., Guides.
In an April 4, 2011 report, Dr. Somogyi accurately described the December 18, 2008
employment injury and reviewed the medical history. Upon examination of the lumbar spine, he
observed tenderness at the mid to lower aspect at the midline and over the left and right
sacroiliac joint areas. No gross deformity or abnormality was found. Range of motion of the
lumbosacral segment revealed forward flexion to mid tibia with discomfort and extension to
neutral with pain. Examination of the lower extremities did not reveal any atrophy or
fasciculation and straight leg raise testing was negative bilaterally. Fabere test was somewhat
uncomfortable bilaterally and Homans sign was unremarkable and normal. Dr. Somogyi
reported that, based upon the available information, appellant reached maximum medical
improvement by the end of 2009. He stated that, according to the Lumbar Spine Regional Grid
for nonspecific chronic or chronic recurrent low back pain, she had four percent impairment of
the lumbosacral region. Dr. Somogyi also determined that, according to the Lumbar Spine
Regional Grid on page 570 of the A.M.A., Guides, appellant’s two percent impairment related to
the whole person should be increased by one percent due to functional history and physical
examination.
In an April 20, 2011 supplemental report, Dr. Somogyi stated that he used the impairment
evaluation related to pain-related impairment. He noted that appellant had a pain level between
6 to 10 on a regular basis and a pain pattern of 6 to 8, which was severe in nature. Based on
Table 3-1, page 40, of the A.M.A., Guides, Dr. Somogyi concluded that she had two percent
whole person impairment. To determine the regional lumbosacral impairment, he divided 2
by .75 which resulted in three percent impairment of the lumbosacral segment.
In a June 10, 2011 report, Dr. Brigham reviewed Dr. Somogyi’s reports and disagreed
with the impairment rating. He noted that Dr. Somogyi converted the whole person impairment
rating for the spine to regional spine impairment, but FECA regulations only authorized
impairment based on the impact to the lower extremities. Dr. Brigham explained that the correct
approach to the evaluation of spinal nerve was based on the sixth edition of the A.M.A., Guides
and the July/August 2009 The Guides Newsletter, which rated spinal nerve impairment based on
the process defined for rating peripheral nerve injuries in the lower extremities. Because the
medical examination revealed that appellant did not have any sensory deficits in the lower
extremities, he again concluded that she had zero percent lower extremity impairment.
Dr. Brigham further stated that the rating of zero percent left upper extremity impairment
remained the same.
In June 3 and July 15 reports, Dr. Sohn related appellant’s treatment for back pain and
radicular symptoms. Upon examination, he observed tenderness in the neck and sciatic notch
paraspinal muscles upon palpation of the spinal column. Dr. Sohn reported that there were no
motor or sensory deficits in the lower extremities and no peripheral edema. He diagnosed

3

lumbar spondylosis with intermittent radiculitis and authorized appellant to return to work with
restrictions.
OWCP determined that a conflict in medical opinion arose between Dr. Somogyi, the
second opinion examiner, and Dr. Brigham, an OWCP medical adviser, regarding appellant’s
schedule award impairment rating and referred her case, together with a statement of accepted
facts, to Dr. Thomas Stevens, a Board-certified orthopedic surgeon, for an impartial medical
examination to determine the percentage of impairment of her upper and/or lower extremities
according to the sixth edition of the A.M.A., Guides.
In a December 5, 2011 report, Dr. Stevens accurately described the December 18, 2008
employment injury and reviewed appellant’s medical history. Upon examination of the cervical
spine, he observed normal range of motion with complaints of some discomfort and no obvious
spasms. Dr. Stevens also noted that appellant’s upper extremity reflexes and gross neurological
examinations were within normal limits. Examination of appellant’s lumbar spine revealed mild
lumbar paravertebral spasm during forward flexion but no scoliosis. Straight leg raise testing
was negative to 90 degrees bilaterally and produced no discomfort until 80 degrees bilaterally.
Fabere test caused slight pelvis discomfort, but Homans test was negative. Active lumbar
extension was 10 degrees and side tilts and rotation were to 15 degrees. Utilizing Table 17-4,
page 570, of the A.M.A., Guides (6th ed. 2008), Dr. Stevens determined that appellant had class 1
level impairment with a five percent impairment of her lumbar spine. He reported that no rating
needed to be considered for her lower extremities or her cervical spine.
On March 13, 2012 OWCP advised Dr. Stevens that its regulations did not allow
schedule award for impairments to the spine or whole person and requested that he provide an
impairment rating for the upper and/or lower extremities based on the sixth edition of the
A.M.A., Guides.
On April 16, 2012 OWCP referred appellant to a different district medical adviser to
determine her permanent impairment according to the sixth edition of the A.M.A., Guides. In an
April 19, 2012 report, Dr. Robert Y. Pick, a Board-certified orthopedic surgeon and OWCP
medical adviser, disagreed with Dr. Stevens’ impairment rating. He noted that Dr. Stevens
referenced Table 17-4, page 570, for the Lumbar Regional Grid but failed to elaborate further
and to include grade modifiers. Utilizing Table 17-4, page 570 of the A.M.A., Guides (6th ed.
2008), Dr. Pick determined that appellant had one percent whole person impairment.3 He agreed
that no rating was needed for her cervical spine.
In a decision dated April 19, 2012, OWCP denied appellant’s claim for a schedule award
finding that the medical evidence failed to establish that she sustained a permanent impairment to
her upper or lower extremities as a result of her accepted work-related injuries.
3

Dr. Pick reported that appellant fell under class 1 for nonspecific chronic or chronic recurrent low back pain and
had a default value of two percent and diagnosis (CDX) of 1. Utilizing the grade modifiers for Functional History
(GMFH) on Table 17-6, page 575, grade modifier 1, Physical Examination (GMPE) on Table 17-7, page 576, grade
modifier 1 and Clinical Studies (GMCS) on Table 17-9, page 581, grade modifier 0, he determined that an
adjustment of -1 was necessary. As applied to the Lumbar Spine Regional Grid, Table 17-4, page 570, appellant’s
grade was reduced from two to one percent whole person impairment.

4

LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing federal regulations5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
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
No schedule award is payable for a member, function or organ of the body not specified
in FECA or in the implementing regulations.8 Neither, FECA nor the implementing regulations
provide for the payment of a schedule award for the permanent loss of use of the back or the
body as a whole.9 However, a claimant may be entitled to a schedule award where the
employment-related back condition affects the upper and/or lower extremities.10
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. For peripheral nerve impairments to the upper or
lower extremities resulting from spinal injuries, OWCP’s procedures indicate that The Guides
Newsletter Rating Spinal Nerve Extremity Impairment using the sixth edition (July/August 2009)
is to be applied.11
ANALYSIS
The Board initially finds that OWCP erred in finding a conflict in medical opinion
between Dr. Brigham, an OWCP medical adviser, who found that appellant had no ratable
permanent impairment for the lower extremities as related to her spine and for her left elbow and
Dr. Somogyi, the second opinion examiner, who determined that she had two percent whole
person impairment and three percent spinal impairment. Section 8123(a) of the FECA provides
that, if there is disagreement between the physician making the examination for the United States
and the physician of the employee, the Secretary shall appoint a third physician who shall make
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404.

7

FECA Bulletin No. 09-03 (issued March 15, 2009); see also Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
8

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

9

5 U.S.C. § 8107(c) (2006); 20 C.F.R. § 10.404(a) (2011); see Jay K. Tomokiyo, 51 ECAB 361 (2000).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.6a(3) (January 2010).
11

See G.N., Docket No. 10-850 (issued November 12, 2010); see also Federal (FECA) Procedure Manual, supra
note 7 at Chapter 3.700, Exhibit 1, note 5 (January 2010). The Guides Newsletter is included as Exhibit 4.

5

an examination.12 As Dr. Somogyi and Dr. Brigham both examined appellant on behalf of
OWCP, a conflict did not exist in the medical opinion evidence, as contemplated by FECA,
between these two physicians.
Appellant did submit reports from her treating physician, Dr. Sohn in support of her
schedule award claim. In his October 11, 2010 report, Dr. Sohn reported that she had a five
percent impairment of her lumbar spine. His report however is of limited probative value
because he failed to properly apply the A.M.A., Guides and The Guides Newsletter in
determining appellant’s permanent impairment. Dr. Sohn did not provide an impairment rating
based on permanent impairment of appellant’s upper and/or lower extremities resulting from
appellant’s accepted conditions. Instead, he provided impairment ratings for her spine and whole
person, which FECA does not authorize. The Board notes that neither FECA nor the
implementing regulations provide for the payment of a schedule award for the permanent loss of
use of the back or the body as a whole.13 A claimant may only be entitled to a schedule award
where the employment-related back condition affects the upper and/or lower extremities.14
Regarding appellant’s lower extremities, Dr. Sohn found in his August 6, 2010 report that
appellant had no motor or sensory deficits in the lower extremities, the deficits which would be
the basis for payment of a schedule award. He therefore provided no basis for payment of a
schedule award for permanent impairment of appellant’s upper or lower extremities.
Dr. Somogyi determined that, according to the Lumbar Spine Regional Grid on page 570
of the A.M.A., Guides (6th ed. 2008), appellant had four percent impairment of the lumbar spine
due to her chronic recurrent low back pain and three percent impairment for the whole person.
In a June 10, 2011 report, Dr. Brigham reviewed Dr. Somogyi’s impairment rating and disagreed
with his findings because FECA regulations did not authorize impairment ratings for the spine or
whole person. The Board finds that Dr. Somogyi did not properly apply the sixth edition of the
A.M.A., Guides or provide a rating for peripheral nerve impairments to appellant’s lower
extremities as a result of her accepted lumbar condition and he did not reference The Guides
Newsletter July/August 2009. Dr. Somogyi’s opinion therefore is of limited probative value.
Dr. Stevens and Dr. Pick found that appellant’s impairment was to the lumbar spine and
not to the upper or lower extremities. Both of the physicians rated her impairment as either a
lumbar spine impairment or a whole person impairment. As noted, FECA however does not
authorize payment for permanent impairment of the lumbar spine or whole person impairment.
The reports from Dr. Stevens and Dr. Pick are therefore also of limited probative value.
The Board finds that the weight of the medical evidence rests with the opinion of
Dr. Brigham, who provided an impairment rating in accordance with the protocols and tables of
the sixth edition of the A.M.A., Guides. As noted OWCP’s procedures provide that The Guides
Newsletter July/August 2009 for Rating Spinal Nerve Extremity Impairment is to be applied
when determining peripheral nerve impairments to the upper or lower extremities resulting from
12

5 U.S.C. § 8123(a).

13

Supra note 9.

14

Supra note 10.

6

spinal injuries.15 The record reveals that Dr. Brigham was the only physician to reference and
properly apply The Guides Newsletter to determine whether appellant sustained any impairment
to her upper or lower extremities as a result of her spinal injury. In his March 2, 2011 report,
Dr. Brigham explained that according to The Guides Newsletter July/August 2009 the process for
rating spinal nerve extremity impairment was found in page 430 of the A.M.A., Guides. He
noted that Dr. Sohn reported no motor or sensory deficits in the lower extremities and
recommended class 0 findings resulting in zero percent permanent impairment. Dr. Brigham
properly concluded that there was no medical evidence demonstrating any impairment to the
bilateral lower extremities resulting from appellant’s accepted lumbar condition. The Board
finds that Dr. Brigham, OWCP’s medical adviser, properly applied the A.M.A., Guides and The
Guides Newsletter to find that appellant did not suffer any permanent impairment to her lower
extremities as related to her lumbar spine.
Dr. Brigham further explained that rating permanent impairment to claimant’s left elbow
was based on diagnosis or range of motion. He referenced Table 15-4, page 398, of the sixth
edition of the A.M.A., Guides and determined that appellant had class zero rating for the her
elbow contusion resulting in a rating of zero percent upper extremity impairment. According to
Table 15-33, page 474, Dr. Brigham concluded that appellant had zero percent upper extremity
impairment because there were no reported motion deficits of the left elbow. The Board finds
that he properly applied the A.M.A., Guides to determine that appellant had zero percent upper
extremity impairment. Thus, Dr. Brigham’s opinion constituted a sufficient basis to determine
that appellant did not sustain any permanent impairment to her upper or lower extremities as a
result of her work-related back injury and to her left elbow and thus, is not entitled to a schedule
award.
On appeal, appellant alleged that she should be awarded five percent permanent
impairment according to Dr. Sohn’s evaluation because he is her physician and knows her
condition better than the other physicians. As explained above, however, Dr. Sohn’s impairment
rating is of little probative value as he did not properly apply the A.M.A., Guides to rate
appellant’s lower extremity impairment as related to her lumbar conditions. The Board finds that
Dr. Brigham properly applied the A.M.A., Guides methods for rating spinal impairments and
thus, his opinion constitutes the weight of the medical evidence.
Appellant did not submit sufficient medical evidence to establish that she sustained any
permanent impairment as a result of her December 18, 2008 employment injury. The medical
evidence demonstrates that she has no impairment to her lower extremities as a result of her
lumbar conditions and to her left upper extremity. The Board finds that appellant is not entitled
to a schedule award as a result of her accepted employment-related injury.
Appellant may request a schedule award or increased schedule based on evidence of a
new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.

15

Supra note 11.

7

CONCLUSION
The Board finds that appellant has not established any ratable impairment related to her
December 18, 2008 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the April 19, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 16, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, MIDTOWN STATION, )
St. Petersburg, FL, Employer
)
__________________________________________ )
G.M., Appellant

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

Docket No. 08-2077
Issued: May 6, 2009

Case Submitted on the Record

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

JURISDICTION
On July 21, 2008 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ merit decision dated November 14, 2007, finding a one percent impairment of the left
leg and July 10, 2008 nonmerit decision denying his request for reconsideration. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has more than a one percent impairment of the left
leg, for which he received a schedule award; and (2) whether the Office properly denied his
request for further merit review pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On August 14, 2006 appellant, then a 58-year-old letter carrier, filed a traumatic injury
claim alleging that on that date he experienced pain, tingling and numbness in his left foot, toes
and leg, lower back and buttocks as he stepped out of his postal vehicle to make a parcel

delivery. By letter dated October 17, 2006, the Office accepted the claim for spinal stenosis and
displacement of a lumbar intervertebral disc without myelopathy.
A February 20, 2007 medical report from Dr. Thomas C. Tolli, an attending Boardcertified orthopedic surgeon, noted appellant’s complaints of back and left lateral hip pain. He
stated that appellant had reached maximum medical improvement as of February 20, 2007.
Dr. Tolli opined that appellant sustained a seven percent impairment based on the 1996 Florida
Uniform Permanent Impairment Rating Schedule. In an April 5, 2007 report, he recommended
appellant not continue working as a mail carrier. In a work capacity evaluation form of the same
date, Dr. Tolli set forth appellant’s physical limitations resulting from the accepted conditions.
On April 6, 2007 appellant filed a claim for a schedule award.
By letter dated April 13, 2007, the Office requested that appellant submit a medical report
from an attending physician which addressed the extent of any permanent impairment he
sustained due to his August 14, 2006 employment injuries based on the fifth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).
In an April 19, 2007 report, Dr. Tolli stated that appellant’s left L5 and S1 nerves had
been affected and he experienced moderate pain. He noted, however, that appellant had no
weakness or atrophy.
On June 25, 2007 an Office medical adviser reviewed the medical evidence of record and
stated that appellant reached maximum medical improvement on February 20, 2007. The Office
medical adviser classified appellant’s mild sensory deficit in the left S1 distribution without
motor loss as Grade 4 for a 25 percent sensory impairment (A.M.A., Guides 424, Table 15-15).
The Office medical adviser multiplied the 25 percent sensory deficit rating by 5 percent, the
maximum impairment allowed for the S1 nerve, to calculate a 1 percent impairment of the left
lower extremity (A.M.A., Guides 424 and Table 15-18).
By letter dated July 11, 2007, the Office advised Dr. Tolli that appellant could not receive
a schedule award for his work-related back condition but, if this condition was impairing one or
both of his lower extremities, he may be entitled to a schedule award. It again requested that he
determine the extent of any employment-related permanent impairment sustained by appellant
based on the A.M.A., Guides. Dr. Tolli resubmitted copies of his February 20 and April 5, 2007
reports.
On August 1, 2007 the Office medical adviser again reviewed the medical evidence of
record. The Office medical adviser noted that Dr. Tolli’s finding of seven percent impairment
based on the Florida Uniform Permanent Guide was not applicable as the Office only recognized
impairments based on the A.M.A., Guides. The Office medical adviser stated that his prior one
percent impairment rating of the left lower extremity remained unchanged.
By decision dated November 14, 2007, the Office granted appellant a schedule award for
a one percent impairment of the left leg.

2

On April 29, 2009 appellant requested reconsideration. He submitted medical records
covering the period November 26, 2006 through June 2, 2008 which addressed his right
shoulder, lumbar, cervical, foot, leg and emotional conditions and his work restrictions. The
additional reports of Dr. Tolli did not address permanent impairment to appellant’s left leg.
By decision dated July 10, 2008, the Office denied appellant’s request for reconsideration
on the grounds that it neither raised substantive legal questions nor included new and relevant
evidence and was insufficient to warrant further merit review.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulations2 set forth the number of weeks of compensation to be paid for
permanent loss or loss of use of the members of the body listed in the schedule. Where the loss
of use is less than 100 percent, the amount of compensation is paid in proportion to the
percentage of loss of use.3 However, neither the Act nor the regulations specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice for all claimants, the Office adopted the A.M.A., Guides as a standard for
determining the percentage of impairment and the Board has concurred in such adoption.4
A schedule award is not payable for a member, function or organ of the body not
specified in the Act or in the implementing regulations.5 As neither the Act nor the regulations
provide for the payment of a schedule award for the permanent loss of use of the back or spine,
no claimant is entitled to such an award.6 However, as the Act makes provision for the lower
extremities, a claimant may be entitled to a schedule award for permanent impairment to a lower
extremity even though the cause of the impairment originates in the spine, if the medical
evidence establishes impairment as a result of the employment injury.7
Section 15.12 of the fifth edition of the A.M.A., Guides describes a method to be used for
evaluation of impairment due to sensory loss of the extremities. The nerves involved are to be
first identified. Under Tables 15-15 the extent of any sensory loss due to nerve impairment is to
be determined, to be followed by determination of the maximum impairment due to nerve

1

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

2

20 C.F.R. § 10.404.

3

5 U.S.C. § 8107(c)(19).

4

20 C.F.R. § 10.404.

5

W.C., 59 ECAB ___ (Docket No. 07-2257, issued March 5, 2008); Anna V. Burke, 57 ECAB 521 (2006).

6

D.N., 59 ECAB ___ (Docket No. 07-1940, issued June 17, 2008).

7

J.Q., 59 ECAB ___ (Docket No. 06-2152, issued March 5, 2008).

3

dysfunction applying Table 15-18 for the lower extremity. The severity of the sensory deficit is
to be multiplied by the maximum value of the relevant nerve.8
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained spinal stenosis and displacement of the
lumbar intervertebral disc without myelopathy. Dr. Tolli, an attending physician, stated that
appellant’s continuing back and left lateral hip pain constituted a seven percent impairment
based on the 1996 Florida Uniform Permanent Impairment Rating Schedule. As noted, the Act
does not authorize schedule awards for permanent impairment of the spine. Further, Dr. Tolli
did not provide an impairment rating based on the tables and figures of the A.M.A., Guides. It is
well established that an impairment rating under the Act is to be made utilizing the A.M.A.,
Guides.9 Therefore, the Board finds that Dr. Tolli’s opinion that appellant sustained seven
percent impairment of the left lower extremity is of diminished probative value.
The Office medical adviser reviewed the medical evidence of record. The medical
adviser determined that appellant’s mild sensory loss in the left S1 distribution without motor
loss constituted a Grade 4 or 25 percent sensory deficit (A.M.A., Guides 424, Table 15-15). The
medical adviser multiplied the 25 percent sensory deficit rating by the 5 percent maximum
sensory loss under Table 15-18 on page 424 of the A.M.A., Guides, resulting in a 1 percent
impairment of the left leg. The Office medical adviser properly utilized the A.M.A., Guides and
provided rationale for rating a one percent impairment of the left leg. The Board finds that the
Office medical adviser’s opinion represents the weight of the medical evidence of record.
Appellant has no more than a one percent impairment of the left leg.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128 of the Act,10
its regulations provide that a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.11 To be entitled to a merit review of an Office decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.12 When a claimant fails to meet one of the above standards, the
Office will deny the application for reconsideration without reopening the case for review of the
merits.

8

A.M.A., Guides 423.

9

Joseph Lawrence, Jr., 53 ECAB 331 (2002).

10

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, [t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
11

20 C.F.R. § 10.606(b)(1)-(2).

12

Id. at § 10.607(a).

4

ANALYSIS -- ISSUE 2
The Board finds that the Office properly denied appellant’s request for consideration. In
its July 10, 2008 decision, it denied further merit reviews as appellant neither raised substantive
legal questions nor included new and relevant evidence. The Board notes that the medical
evidence submitted by appellant did not address the permanent impairment to his left leg.
Rather, this evidence noted appellant’s work restrictions or addressed his cervical and other
diagnosed conditions. This evidence is not relevant to establishing greater impairment than that
awarded by the Office. Evidence that does not address the particular issue involved does not
constitute a basis for reopening a claim for further merit review.13
CONCLUSION
The Board finds that appellant has no more than a one percent impairment of the left leg,
for which he received a schedule award. The Board further finds that the Office properly denied
appellant’s request for further merit review of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the July 10, 2008 and November 14, 2007
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: May 6, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

13

See Freddie Mosley, 54 ECAB 255 (2002).

5