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

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

Docket No. 17-0823
Issued: August 14, 2017

Case Submitted on the Record

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

JURISDICTION
On February 24, 2017 appellant filed a timely appeal from a February 2, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed since the last merit decision dated July 7, 2016 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 a prerecoupment
hearing as untimely filed.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts of the case as presented in the
prior decision are herein incorporated by reference. The relevant facts are as follows.
On July 11, 1997 appellant, then a 47-year-old general clerk, filed an occupational
disease claim (Form CA-2) alleging that on July 24, 1996 she first became aware that her
bilateral thumb arthritis had been aggravated by her federal employment duties. She did not stop
work. OWCP accepted the claim for aggravation of bilateral thumb arthritis and aggravation of
bilateral wrist arthritis.3
Appellant received intermittent wage-loss compensation benefits on the supplement rolls
from October 14, 2008 until April 9, 2011. OWCP placed appellant on the periodic rolls for
temporary total disability effective April 10, 2011.4
On March 17, 2014 OWCP referred appellant for vocational rehabilitation services.5
By letter dated October 23, 2014, counsel advised that appellant had returned to two parttime jobs on August 12, 2014. In a letter dated October 24, 2014, appellant detailed her
employment and pay rates for her work at HR Imaging Partners, Inc. and Delaware County
Center YMCA.
By a preliminary determination dated December 19, 2014, OWCP informed appellant of
an overpayment of compensation in the amount of $1,186.83 because she had returned to fulltime private sector work, effective August 12, 2014, but continued to receive compensation on
the periodic rolls through August 29, 2014. It found that she was with fault in the creation of the
overpayment. OWCP requested that appellant complete an enclosed overpayment recovery
questionnaire and submit supporting financial documents. Additionally, it notified her that,
within 30 days of the date of the letter, she could request a telephone conference, a final decision

2

Docket No. 16-0588 (issued August 8, 2016).

3

This was assigned OWCP File No. xxxxxx485. On October 16, 2015 OWCP combined OWCP File Nos.
xxxxxx728 and xxxxxx103, with xxxxxx485 as the master file. Under OWCP File No. xxxxxxx103, it accepted the
claim for temporary aggravation of bilateral wrist arthritis which resolved effective May 10, 1994. OWCP denied
appellant’s claim for aggravation of bilateral wrist arthritis under OWCP File No. xxxxxx728.
4

In a December 29, 2010 letter, the employing establishment notified OWCP that no work was available for
appellant within her restrictions due to the National Reassessment Program process.
5

By decision dated December 10, 2014, OWCP reduced appellant’s compensation to zero pursuant to 5 U.S.C.
§ 8113(b). It found that appellant’s failure to undergo essential preparatory rehabilitation efforts did not allow
OWCP to determine what her wage-earning capacity would have been if she had undergone testing and
rehabilitation. On December 16, 2014 appellant requested a hearing before an OWCP hearing representative. By
decision dated December 1, 2015, OWCP’s hearing representative affirmed the December 10, 2014 decision. On
February 8, 2016 appellant filed an appeal to the Board of the December 1, 2015 decision. By decision dated
August 8, 2016, the Board determined that OWCP had not met its burden of proof to reduce appellant’s
compensation effective December 10, 2014 and reversed the December 1, 2015 decision. The Board found that
OWCP failed to follow its procedures once appellant advised it that she had returned to work and failed to determine
whether she had established good cause for failure to cooperate with vocational rehabilitation efforts. Supra note 2.

2

based on the written evidence, or a prerecoupment hearing. No response was received within the
time allotted.
By decision dated July 7, 2016, OWCP finalized the preliminary overpayment finding of
a $1,186.83 overpayment of compensation for the period August 12 to 29, 2014. It found that
appellant continued to receive compensation on the periodic rolls even though she had returned
to full-time work in the private sector on August 12, 2014. OWCP found her at fault in creating
the overpayment as she knew, or reasonably should have known, that she was not entitled to
receive wage-loss compensation once she had returned to work. It further found that, as
appellant was at fault in creating the overpayment, it was not subject to waiver of recovery.
OWCP directed recovery of the overpayment by a single payment of $1,186.83 within 30 days.6
On December 29, 2016 OWCP received appellant’s December 7, 2016 request for a
prerecoupment hearing. Appellant alleged that an overpayment did not exist
By decision dated February 2, 2017, OWCP denied, as untimely, appellant’s request for a
prerecoupment hearing as the request had not been made within 30 days of the December 19,
2014 preliminary determination. It noted that the overpayment had been finalized in the July 7,
2016 decision.
LEGAL PRECEDENT
OWCP’s regulations on the recovery of overpayments provide that, before collecting the
overpayment, it must provide the claimant with written notice of the fact and amount of the
overpayment, the finding of fault, the right to submit evidence challenging the fact, amount, or
finding of fault, and the right to request waiver of the overpayment.7 The regulations further
provide that a claimant may request a prerecoupment hearing with respect to an overpayment.8
Failure to request the prerecoupment hearing within 30 days shall constitute a waiver of the right
to a hearing.9
The only review of a final decision concerning an overpayment is an appeal to the Board.
The provisions of 5 U.S.C. §§ 8124(b) and 8128(a) regarding hearings and reconsideration do
not apply to a final overpayment decision.10
ANALYSIS
The overpayment action request form that accompanied the December 19, 2014
preliminary determination was specific as to the 30-day time limitation and the method for
6

The Board does not have jurisdiction over the July 7, 2016 overpayment decision as it was issued more than 180
days from the date of this appeal. See 20 C.F.R. § 501.3(e).
7

20 C.F.R. § 10.431; see also A.G., 58 ECAB 625 (2007).

8

Id. at § 10.432.

9

Id.; see also D.P., Docket No. 13-630 (issued August 2, 2013); M.B., Docket No. 12-19 (issued October 5,
2012); L.C., 59 ECAB 569 (2008); Willie C. Howard, 55 ECAB 564 (2004).
10

20 C.F.R. § 10.440(b).

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requesting a prerecoupment hearing, including the particular address where the signed, written
request was to be mailed. OWCP finalized the overpayment on July 7, 2016. It received
appellant’s request for a prerecoupment hearing on December 29, 2016. OWCP’s implementing
regulations specify that evidence and argument regarding a prerecoupment hearing must be
presented to OWCP within 30 days of the written preliminary notice of overpayment or the right
to the prerecoupment hearing is waived.11
OWCP’s procedures for requesting a prerecoupment hearing also specify that additional
evidence and arguments must be submitted by the claimant within 30 days of the date of the
letter.12 As the request for a prerecoupment hearing was not received by OWCP within 30 days
of December 19, 2014, the February 2, 2017 decisions of OWCP denying appellant’s request for
a prerecoupment hearing was proper under the law and facts of this case.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for a prerecoupment
hearing as untimely filed.

11

See supra note 7.

12

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Preliminary and
Final Decisions Chapter 6.200.4(a) (June 2009).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 2, 2017 is affirmed.
Issued: August 14, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0733
Issued: August 3, 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 February 14, 2020 appellant, through counsel, filed a timely appeal from a
December 18, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that following the December 18, 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 her burden of proof to establish a traumatic injury
in the performance of duty on May 22, 2019, as alleged.
FACTUAL HISTORY
On May 31, 2019 appellant, then a 41-year-old clerk, filed a traumatic injury claim (Form
CA-1) alleging that at approximately 12:00 p.m. on May 22, 2019 she was exposed to a substance
inside of packages that were believed to be toxic while in the performance of duty. She explained
that her nose became irritated and started burning when she received the first package, and claimed
that her throat started to close when she received the second package. On the reverse side of the
claim form, appellant’s supervisor indicated that she did not know if appellant was injured while
in the performance of duty and that she would need more information from her. Appellant did not
stop work.
In a May 26, 2019 medical report, Dr. Jonathan Polhemus, Board-certified in family
medicine, noted that appellant informed him that she received a semi-transparent package at work
with questionable specimens and thereafter began experiencing a burning sensation in her nose
and eyes, a sore throat, and a cough. She denied any recent travel or contact with pets, new carpets,
or other potential irritants. Appellant submitted an unsigned diagnostic report of even date in
which an x-ray of her chest showed no acute disease. On evaluation of her diagnostic report and
several lab tests, Dr. Polhemus diagnosed cough, allergic reaction, and sore throat. He prescribed
medication to treat her symptoms and advised her to follow up at her next appointment.
In a development letter dated June 7, 2019, OWCP advised appellant of the deficiencies of
her claim and instructed her as to the factual and medical evidence necessary to establish her claim.
It provided a factual questionnaire for her completion. OWCP afforded her 30 days to provide the
necessary information.
In a June 9, 2019 medical report, Dr. Mazin Shikara, Board-certified in internal medicine,
reviewed the history of appellant’s symptoms related to the alleged May 22, 2019 employment
incident. He diagnosed cough and allergic reaction and recommended that she be evaluated by a
toxicologist or occupational medicine doctor. In a duty status report (Form CA-17) of even date,
Dr. Shikara again diagnosed cough and recommended that appellant be seen by the proper doctor
to treat her condition.
In a June 13, 2019 medical report, Christina Simpson, a physician assistant, indicated that
appellant’s symptoms related to the alleged May 22, 2019 employment incident had worsened over
three weeks. She noted appellant’s diagnoses of a cough and irritation in both eyes. In a state
workers’ compensation form of even date, Ms. Simpson checked a box marked “undetermined as
of this date” with regard to whether appellant’s illness was work related. In a June 13, 2019 Form
CA-17, she diagnosed cough due to the alleged May 22, 2019 employment incident.
In a June 21, 2019 medical report, Antonio Abreu, a registered nurse, noted that appellant
informed him that the itching and coughing she had experienced since the alleged employment
incident had worsened and that she needed a refill of her prescriptions. He diagnosed cough, rash

2

and nonspecific skin eruption, irritation of both eyes and pruritus, unspecified. Dr. Abreu
prescribed medication to treat appellant’s symptoms.
By decision dated July 8, 2019, OWCP denied appellant’s traumatic injury claim, finding
that the evidence of record was insufficient to establish that the injury and/or events occurred as
she described. It noted that she did not respond to its June 7, 2019 development questionnaire and
did not provide a factual statement to substantiate that the May 22, 2019 injury occurred.
OWCP continued to receive evidence. In a July 2, 2019 diagnostic report, Dr. William
Tuer, a Board-certified allergist and immunologist, performed an antinuclear antibodies (ANA)
screening that returned negative suggesting that no ANA-associated autoimmune diseases were
present.
On July 29, 2019 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
In a June 26, 2019 medical report, Dr. Tuer reviewed appellant’s history of injury related
to the alleged May 22, 2019 employment incident. Appellant explained that she suspected there
was an indoor mold problem at the employing establishment. On evaluation, Dr. Tuer diagnosed
rhinitis, unspecified, and cough.
In a June 30, 2019 diagnostic report, Dr. Tuer performed a Tryptase test and indicated that
measuring both forms of Tryptase increases sensitivity for the diagnosis of mastocytosis, and mast
cell degranulation as a cause of anaphylaxis.
In a July 5, 2019 diagnostic report, Dr. Tuer conducted an ova and parasites stool test and
determined that no ova or parasites were present.
In a July 19, 2019 medical report, Mr. Abreu saw appellant and diagnosed cough, rash and
other nonspecific skin eruption, irritation of both eyes, and pruritis. He noted that he assisted her
with completing her workers’ compensation forms and refilling her prescriptions.
In a July 29, 2019 attending physician’s report (Form CA-20), Mr. Abreu diagnosed a
cough, rash, irritation of both eyes, and pruritus and checked a box marked “no” indicating that
appellant’s condition was not caused or aggravated by her federal employment.
In an August 2, 2019 Form CA-17 Shannon Snyder, a physician assistant, diagnosed
allergic rhinitis due to the alleged May 22, 2019 employment incident and recommended work
restrictions for appellant.
In an August 20, 2019 medical report, Ms. Snyder evaluated appellant for a follow up after
her allergy testing. She noted that appellant experienced further symptoms when she returned to
work and diagnosed allergic rhinitis due to pollen and allergic rhinitis due to animal hair and
dander.
In an August 28, 2019 medical report, Dr. Tuer reviewed a 48-hour patch reading and noted
that it was positive for contactants, thiuram and cobalt. He diagnosed allergic rhinitis due to pollen,
allergic contact dermatitis due to metals, allergic contact dermatitis due to other chemical products,
other allergic rhinitis and shortness of breath.
3

In a September 18, 2019 medical report, Dr. Clive Roberson, a Board-certified allergist
and immunologist, evaluated appellant for her history of shortness of breath, rhinitis, and
conjunctivitis, which she experienced while in a specific area at work. He diagnosed allergic
rhinitis due to animal hair and dander, allergic rhinitis due to pollen, chronic rhinitis, and cough.
In an October 5, 2019 medical form, Dr. Tuer requested that appellant be allowed to remain
off work due to her condition. He explained that she was currently undergoing medical
investigation for a possible toxic reaction due to the alleged May 22, 2019 employment incident.
In an October 14, 2019 medical note, Dr. Tuer indicated that appellant was still
experiencing symptoms and requested that she be transferred to a different workstation.
Appellant also submitted an undated Form CA-20 in which Ms. Simpson diagnosed cough
and irritation of both eyes and checked a box marked “Yes” indicating that appellant’s condition
was caused or aggravated by her federal employment.
A telephonic hearing was held on November 13, 2019. Appellant detailed the alleged
May 22, 2019 employment incident and stated that she was feeling fine before she began her shift
and received two packages. She explained that a customer brought in two packages to her window
and her eyes started to feel irritated, her nose started burning, her throat felt like it was locking
down, and her skin began to itch. Appellant asked the customer immediately what was in the
packages because she felt dizzy, but he did not answer. No hazardous material inspection was
conducted and the packages were not isolated. Appellant also noted that she did not notice a
powder, liquid, or other substance coming from the packages. She later went to the hospital on
September 26, 2019 after her symptoms continued to worsen. Appellant reported that she never
had any problems with her lungs, allergic reactions, asthma or sinus infections. Her physician
explained that it was difficult to define the trigger because the packages were not isolated, and that
he would not know for sure what caused her symptoms. Drs. Tuer and Roberson opined that she
would require constant treatment if she did not change her work location as she still experienced
problems when she returned to work. The hearing representative held the case record open for 30
days for the submission of additional evidence. No additional evidence was received.
By decision dated December 18, 2019, OWCP’s hearing representative affirmed the July 8,
2019 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,5 that an injury was sustained in the performance of duty, as
alleged, and that any disability or medical condition for which compensation is claimed is causally

4

Id.

5

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).

4

related to the employment injury.6 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.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.8
Generally, fact of injury consists of two components that must be considered in conjunction with
one another. First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place, and in the manner alleged.9 Second, the
employee must submit sufficient evidence to establish that the employment incident caused a
personal injury.10
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his or her subsequent course of
action.11 The employee has not met his or her burden of proof to establish the occurrence of an
injury when there are inconsistencies in the evidence that cast serious doubt upon the validity of
the claim. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s
statements in determining whether a prima facie case has been established.12 An employee’s
statements alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence.13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that the claimed
May 22, 2019 employment incident occurred in the performance of duty as alleged.
On her May 31, 2019 Form CA-1, appellant alleged that at approximately 12:00 p.m. on
May 22, 2019 she was exposed to an unknown substance inside of a package. She explained that
her nose became irritated and her throat began to close shortly after she began handling packages.
No other information or statement clarifying what employment duties were involved to have
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

E.M., Docket No. 18-1599 (issued March 7, 2019); T.H., 59 ECAB 388, 393-94 (2008).

9

L.T., Docket No. 18-1603 (issued February 21, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

10

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

11

M.F., Docket No. 18-1162 (issued April 9, 2019); Charles B. Ward, 38 ECAB 667, 67-71 (1987).

12

Betty J. Smith, 54 ECAB 174 (2002); L.D., Docket No. 16-0199 (issued March 8, 2016).

13

See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).

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caused her claimed injury on May 22, 2019 was provided. Appellant failed to provide any
description or details of the alleged May 22, 2019 incident sufficient to determine the
circumstances surrounding her injury.14
In a May 26, 2019 medical report, Dr. Polhemus indicated that appellant received a semitransparent package at work with questionable specimens and thereafter began experiencing a
burning sensation in her nose and eyes, as well as a sore throat and cough.
In a development letter dated June 7, 2019, OWCP informed appellant that the evidence of
record was insufficient as she had not sufficiently described the May 22, 2019 employment
incident alleged to have caused her injury. It asked her to describe the alleged incident in detail,
but she did not respond to the request for additional specific factual information.15
During the November 13, 2019 telephonic hearing, appellant asserted that she was feeling
fine before she received the two packages alleged to have caused her injury. She explained that,
despite her eyes, nose, throat, and skin being irritated by the packages, no hazardous material
inspection was conducted and the packages were not isolated. Appellant continued, noting that
she did not notice any powder, liquid or other substance coming from the packages.
The Board notes that the only explanation pertaining to the alleged May 22, 2019
employment incident was appellant’s generalized recount of the event during the November 13,
2019 telephonic hearing where she alleged that her symptoms were caused by two packages. She,
however, did not reference a specific substance and did not allege exposure with sufficient
specificity with regard to the characteristics of the substance. While she sought treatment from
Dr. Polhemus on May 26, 2019, he only recounted that she received a package with “questionable
specimens” before she began experiencing her symptoms. By failing to respond to the
questionnaire, failing to describe the specific employment incident and circumstances surrounding
her alleged injury, and failing to provide a history of injury when seeking medical treatment,
appellant has not established that the traumatic injury occurred in the performance of duty, as
alleged.16 Accordingly, the Board finds that she has not met her burden of proof.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that the May 22,
2019 employment incident occurred in the performance of duty, as alleged.

14

K.S., Docket No. 17-2001 (issued March 9, 2018).

15

Id.; see also K.W., Docket No. 16-1656 (issued December 15, 2016).

16

See H.B., Docket No. 18-0278 (issued June 20, 2018); John R. Black, 49 ECAB 624 (1998); Judy Bryant, 40
ECAB 207 (1988); Martha G. List, 26 ECAB 200 (1974).

6

ORDER
IT IS HEREBY ORDERED THAT the December 18, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 3, 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

7


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

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

Docket No. 17-0595
Issued: September 7, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 23, 2017 appellant filed a timely appeal from September 14, 2016 and
January 3, 2017 nonmerit decisions of the Office of Workers’ Compensation Programs (OWCP).
As more than 180 has days elapsed from the last merit decision, dated November 4, 2015, 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 to review the merits of the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s requests for reconsideration of
the merits of his claim, pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances set forth in
the Board’s prior decision are in corporated herein by reference, the relevant facts are as follows.
On December 15, 2009 appellant, then a 54-year-old custodian-laborer, filed an
occupational disease claim (Form CA-2) alleging that he developed grade 2 spondylolisthesis of
the lumber spine at L5 as well as arthritis and degeneration of his hips due to lifting, carrying,
and pushing heavy containers. He noted that his job required him to bend, lift, twist, pull, and
push as well as use a heavy machine to clean floors. Appellant first became aware of his
condition in December 1989 and first attributed it to his federal employment in April 1991. He
also submitted a statement describing his work duties as a part-time flexible carrier beginning
in 1988. Appellant noted that his back condition was first diagnosed in April 1991. He returned
to work at the employing establishment on June 25, 1994 as a custodian laborer. Appellant noted
that his condition worsened and that he needed a hip replacement.
In a note dated December 15, 2009, Dr. Scott Goldman, a Board-certified orthopedic
surgeon, diagnosed osteoarthritis and spondylolisthesis of the lumbar spine and osteoarthritis of
both hips due to repetitive bending, stooping, and lifting in his job.
OWCP requested additional factual and medical information in support of appellant’s
claim on January 25, 2010. Dr. Goldman completed a February 8, 2010 report and noted
appellant’s work duties. He diagnosed osteoarthritis and spondylolisthesis of the lumbar spine as
well as osteoarthritis of both hips. Dr. Goldman opined that appellant would have had some
arthritis and spondylolisthesis without working at the employing establishment. He noted,
“However, the severity of arthritis in the lower back and hips is not consistent with [appellant’s]
age had he not worked for the [employing establishment]. It is my opinion that his severe
conditions, including arthritis of the lower back and both hips, are the result of the repetitive
bending, stooping, and lifting activities he has performed with working at the [employing
establishment] since 1988.”
By decision dated April 28, 2010, OWCP denied appellant’s claim finding that
Dr. Goldman’s reports were not based on a complete factual background.
Dr. Goldman completed an additional report on May 24, 2010 and opined that appellant’s
conditions were due to repetitive trauma that occurred while working at the employing
establishment.
Appellant requested a review by an OWCP hearing representative of the written record.
In a February 17, 2011 decision, the hearing representative found that Dr. Goldman had not
provided the necessary factual background to support his opinion on causal relationship. She
noted, “Dr. Goldman provided a conclusion without sufficient explanation of the nature of the
repetitive motions required by [appellant’s] duties in 2010, when the claim was filed, or why,
over a period of time, the identified work activities caused the diagnosed conditions.”

2

Docket No. 13-0450 (issued April 26, 2013).

2

In a July 14, 2011 letter, appellant noted that he disagreed with the denial of his claim.
He noted that he was submitting more information and asserted that additional medical reports he
was submitting showed that his job duties contributed to his diagnosed conditions. Appellant
submitted notes from a chiropractor, Dr. Gary Spunt, dated April 11, 2011, diagnosing
degenerative joint disease in the lower back and hip region.
On December 6, 1993 appellant underwent a fitness-for-duty examination due to
intermittent lower back pain resulting in a diagnosis of spondylosis. Dr. Thomas W. Jackson, a
Board-certified orthopedic surgeon, noted that appellant had preexisting spondylolisthesis at
L5-S1 which was aggravated by his work activities. He found that appellant’s spondylolisthesis
was stable and would likely result in a spontaneous fusion. Dr. Jackson noted that appellant
could work.
Dr. Randy Jones, Board-certified in emergency medicine, examined appellant on
April 18, 1993 and diagnosed severe spondylosis at L5-S1. He opined that appellant was totally
disabled and that his condition was not due to his employment.
Dr. Steven M. Ma, a Board-certified orthopedic surgeon, examined appellant on April 23,
1993 and diagnosed grade 2 spondylolisthesis of L5 on S1 with significant sclerosis and loss of
L5-S1 disc space. He recommended work restrictions including lifting no more than 25 pounds.
Appellant submitted additional medical a July 14, 2010 note indicating that he had
undergone a posterior left hip replacement.
In response to a telephone call, OWCP advised appellant to select the type of appeal he
wished to pursue. Appellant requested reconsideration on March 26, 2012. He noted that the
July 14, 2011 letter was also a request for reconsideration.
By decision dated June 22, 2012, OWCP declined to review the merits of appellant’s
claim as his request for reconsideration was untimely filed and failed to demonstrate clear
evidence of error. Appellant appealed to the Board.
In its April 26, 2013 decision,3 the Board found that appellant’s July 14, 2011 letter
constituted a timely reconsideration request and remanded the case for review of the new
evidence under the proper standard of review for timely reconsideration requests.4
Appellant submitted an August 30, 2012 report from Dr. Edward Mittleman, a family
practitioner. Dr. Mittleman described appellant’s work duties and his medical history including
a left hip replacement on July 14, 2010 and a right hip replacement on May 24, 2012. He
reviewed appellant’s test studies and diagnosed chronic lumbar sprain/strain, lumbar
spondylosis, and lumbar spondylolisthesis. Dr. Mittleman opined that appellant’s work activities
aggravated his condition and caused greater slippage of the anterolisthesis. He noted that
3

Id.

4

After the Board’s April 26, 2013 decision, appellant filed a new occupational disease claim (Form CA-2) and
attributed his low back pain to repetitive bending, stooping, twisting, pushing, and pulling heavy equipment as a
custodian. OWCP deleted this claim on November 1, 2012 as repetitious of appellant’s December 15, 2009 claim.

3

appellant did not initially experience numbness in the legs, and that the increased numbness was
an indication that the anterolisthesis had increased. Dr. Mittleman opined that appellant’s
repetitive work duties “produced significant forces on the lumbar axial skeletal system.” He
explained that, with the repetitive biomechanical impact loading produced during appellant’s
work activities, the fibers of the annulus fibrosus surrounding appellant’s intervertebral disc had
separated resulting in a loss of fluid from the disc or desiccation. Dr. Mittleman noted that after
desiccation the disc was allowed to herniate beyond its physiologic position and impinge upon
surrounding structures through which spinal nerves traverse resulting in radiculopathy. He
related that, “Medical studies have shown that repetitive flexion, rotation, and compression of the
lumbar axial skeletal system over an adequate length of time leads to annular separation and
subsequent prolapse.” Dr. Mittleman found that appellant had developed degenerative
spondylosis involving the facet joints as well as a bony spur at L4-5. He explained, “The bones’
response to repetitive biomechanical impact loading is to produce more bone (osteoarthritis) this
repose to the abnormal stresses on the joint produce degenerative changes as noted in this
patient’s lumbar [magnetic resonance imaging] (MRI) [scan].” Dr. Mittleman concluded, “I
believe one can now conclude that it is the repetitive impulse loading over [appellant’s] 24 years
as an employee of the [employing establishment] that has initiated the sequence of metabolic,
biochemical, and biomechanical events that had led to the additional pathology in his low back.”
By decision dated August 29, 2013, OWCP denied modification of its prior decision. It
found that Dr. Mittleman’s report failed to provide a reasoned medical opinion explaining how
appellant’s employment duties, beginning in April 1991, caused his current medical conditions.
Appellant again requested reconsideration on February 14, 2014. He submitted a
December 23, 2013 note from Dr. Mittleman. Dr. Mittleman reviewed appellant’s medical
treatment and opined that appellant had developed permanent aggravation of his lumbar
pathology due to his job duties of lifting a 30-pound lawnmower three times a week, lifting bags
of grass weighing 25 pounds, and lifting trash cans weighing 75 pounds. He explained that these
activities had produced repetitive compression forces on appellant’s lumbar axial skeletal
system. Dr. Mittleman also described appellant’s job duty of mopping floors with repetitive
lumbar axial skeletal system twisting for four hours. He diagnosed permanent aggravation of
lumbar spondylosis and permanent aggravation of lumbar spondylolisthesis.
In a March 4, 2014 decision, OWCP reviewed the merits of appellant’s claim, but denied
modification finding that Dr. Mittleman’s reports were cumulative as he cited previously
reviewed medical reports and did not provide a rationalized opinion based on objective evidence
to show how appellant’s work activities aggravated his underlying activities. It further
determined that Dr. Mittleman had not addressed the impact of appellant’s bilateral hip
replacement surgeries or 1995 spine surgery. OWCP noted that the record did not contain these
operative reports and concluded that there was no objective basis for a comparison of how
appellant’s condition had been permanently and materially changed by his work duties.
Appellant again requested reconsideration on July 28, 2014. In support of his request, he
submitted medical documents regarding his July 14, 2010 left hip replacement, May 24, 2012
right hip replacement, and a January 19, 1995 thoracic laminectomy and excision of intradural
extramedullary schwannoma. In a report dated July 16, 2014, Dr. Mittleman reviewed
appellant’s back surgery and noted that this was not for a malignant tumor, but a benign nerve

4

sheath tumor. He opined that removal of the schwannoma did not result in any persisting
pathology and did not instigate any future pathology. Dr. Mittleman further determined that
there was no relationship between appellant’s hip pathology and his spondylolisthesis. He
reviewed appellant’s July 13, 2012 MRI scan which demonstrated bilateral pars defect at L5-S1.
Dr. Mittleman explained:
“When there is a degeneration of the vertebra’s articulating part called the pars,
this defect is referred to as spondylosis. Spondylosis pain can lead to reduced
mobility and inactivity of the individual experiencing this pain. Because the
vertebra is no longer as stable as a fixed vertebra, the vertebra can slip out of
place. When this occurs it is referred to medically as spondylolisthesis.
“The condition of spondylolisthesis (which has increased and has been aggravated
while [appellant] has been working for the [employing establishment]) is caused
by repetitive trauma incurred during the activities that [appellant] performs….
“With shifting motion of the vertebra, this can produce irritation to the bony
vertebra result in the formation of addition bone (spondylosis).”
By decision dated August 14, 2014, OWCP denied modification of its prior decision. It
determined that the latest evidence submitted deficient was, as appellant had not provided
information about his work history prior to working at the employing establishment.
Additionally, OWCP found unbelievable that a brief stint as a letter carrier caused or
permanently aggravated his spine to the point that he developed spondylolisthesis. It determined
that there was simply too much missing information.
On August 6, 2015 appellant again requested reconsideration and submitted a July 30,
2015 report from Dr. Basimah Khulusi, a Board-certified physiatrist. Dr. Khulusi noted
reviewing appellant’s medical records and OWCP’s August 14, 2014 decision. He reported that
appellant’s back pain began in 1989 and that appellant informed an employing establishment
physician of this in a 1993 fitness-for-duty examination. Appellant began working as a
custodian in 1994. He listed appellant’s laminectomy and schwannoma removal in 1995, hip
replacement surgeries in 2010 and 2012 as well as shoulder surgeries on March 10, 2015 and
July 10, 2015. Dr. Khulusi described appellant’s previous work history as a busboy and retail
sales in a department store for 15 years. Appellant was not a military veteran. Dr. Khulusi
reviewed appellant’s progressive spondylolisthesis. He described appellant’s custodian duties
that included repeated bending, stooping, and twisting of his back. Dr. Khulusi opined that
appellant had bilateral pars defect that caused spondylosis resulting in spondylolisthesis even
before he began working at the employing establishment. Once appellant began working at the
employing establishment, the demands on his back were more than his muscles could
compensate for and he developed back symptoms. Dr. Khulusi noted, “The job at the
[employing establishment] did not cause his pars defect or his spondylolisthesis, but it did
definitely aggravate his back condition.” He noted that appellant’s hip girdle had to act
excessively to minimize the stresses on the L5-S1 area. Dr. Khulusi found, “All those excessive
stresses onto his hip girdles have resulted over time in accelerating the degeneration of his hip
joints.”

5

In a November 4, 2015 decision, OWCP reviewed the merits of the claim, but denied
modification, finding that the medical evidence of record was insufficient to establish causal
relationship. It found that Dr. Khulusi did not provide sufficient rationale to support his
conclusions. OWCP noted that he did not discuss appellant’s prior injuries or explain why
appellant’s preexisting conditions were not due to the natural progression of the aging process. It
also questioned whether Dr. Khulusi’s report was based on a complete and accurate medical
history.
Appellant again requested reconsideration on December 14, 2015. He submitted a
September 10, 2014 report from Dr. Khulusi providing findings on examination. In a report
dated November 19, 2015, Dr. Khulusi noted his opinion that OWCP abused its discretion. He
discounted the possibility that appellant’s deteriorating back condition was due to age and
attributed the changes to appellant’s job duties.
In a March 10, 2016 decision, OWCP declined to reopen appellant’s claim for further
consideration of the merits. It found that Dr. Khulusi’s September 10, 2014 and November 10,
2015 reports were cumulative and substantially similar to the July 30, 2015 report.
On June 29, 2016 appellant again requested reconsideration of the November 4, 2015
merit decision. He submitted a June 27, 2016 report from Dr. Mittleman. Dr. Mittleman
reviewed medical records and concluded that appellant’s work activities placed significant forces
on his unstable low back and that these activities led to aggravation of appellant’s lumbar
pathology. He opined that appellant’s lumbar spondylosis, lumbar disc protrusions, and
spondylolisthesis were medically connected to factors of appellant’s employment through
aggravation.
By decision dated September 14, 2016, OWCP declined to reopen appellant’s claim for
further consideration of the merits. It found that Dr. Mittleman’s report of June 27, 2016 was
substantially similar to evidence previously considered in prior decisions.
Appellant again requested reconsideration on October 24, 2016. In support of his
request, he submitted an October 13, 2016 report from Dr. Khulusi. Dr. Khulusi disagreed with
OWCP’s assessment of his report and asserted that he examined appellant, reviewed medical
records, and obtained a history from appellant. He accused OWCP of falsehoods. Dr. Khulusi
opined that repetitive job activities, like those performed by appellant, did cause acceleration of
degeneration of the low back. He referred to his July 30, 2015 letter.
By decision dated January 3, 2017, OWCP declined to reopen appellant’s claim for
further consideration of the merits as he failed to comply with the requirements of 20 C.F.R.
10.606. It found that Dr. Khulusi’s report was cumulative and substantially similar to evidence
or documentation that was already in the case record and previously considered.
LEGAL PRECEDENT
FECA provides in section 8128(a) that OWCP may review an award for or against
payment of compensation at any time on its own motion or on application by the claimant.5
5

Supra note 1.

6

Section 10.606(b)(3) of the Code of Federal Regulations provides that a claimant may obtain
review of the merits of the claim by submitting in writing an application for reconsideration
which sets forth arguments or evidence and shows that OWCP erroneously applied or interpreted
a specific point of law; or advances a relevant legal argument not previously considered by
OWCP; or includes relevant and pertinent new evidence not previously considered by OWCP.6
Section 10.608 of OWCP’s regulations provides that, when a request for reconsideration is
timely, but does meet at least one of these three requirements, OWCP will deny the application
for review without reopening the case for a review on the merits.7 Section 10.607(a) of OWCP’s
regulations provides that to be considered timely an application for reconsideration must be
received by OWCP within one year of the date of OWCP’s merit decision for which review is
sought.8 The Board has held that the submission of evidence which does not address the
particular issue involved does not constitute a basis for reopening a case.9
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of his claim under 5 U.S.C. § 8128(a).
In the most recent merit decision dated November 4, 2015, OWCP denied appellant’s
occupational disease claim finding that he had not submitted sufficient rationalized medical
opinion evidence to establish a causal relationship between his employment duties and his
diagnosed lumbar and hip conditions. On June 29 and October 24, 2016 appellant requested
reconsideration of this decision. OWCP declined his requests for reconsideration in
September 14, 2016 and January 3, 2017 nonmerit decisions.
The Board does not have jurisdiction over the November 4, 2015 merit decision and can
only consider whether appellant met any of the requirements of 20 C.F.R. § 10.606(b)(3), which
would prompt OWCP to reopen the case for merit review. The underlying issue on
reconsideration is medical in nature, whether the medical evidence establishes a causal
relationship between his lumbar and hip conditions, and established employment factors.
The Board finds that appellant did not show that OWCP erroneously applied or
interpreted a specific point of law. Moreover, appellant did not advance a relevant legal
argument not previously considered.10
The Board further finds that appellant did not submit relevant or pertinent new evidence
not previously considered in support of his June 29, 2016 request for reconsideration.
6

20 C.F.R. § 10.606(b)(3).

7

Id. at § 10.608.

8

Id. at § 10.607(a). Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations¸ Chapter 2.1602.4
(February 2016).
9

B.T., Docket No. 16-0785 (issued September 21, 2016); Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G.
Williams, 52 ECAB 180 (2000).
10

C.H., Docket No. 17-0074 (issued March 17, 2017).

7

Dr. Mittleman’s June 27, 2016 report reiterated the opinion that appellant’s lumbar spondylosis,
lumbar disc protrusions, and spondylolisthesis were medically connected to factors of his
employment through aggravation. He previously offered this opinion in his August 30, 2012,
December 23, 2013, and July 16, 2014 reports which OWCP reviewed in prior merit decisions.
Evidence that repeats or duplicates evidence already in the case record has no evidentiary value
and does not constitute a basis for reopening a case.11
In support of his October 24, 2016 request for reconsideration, appellant submitted an
October 13, 2016 report from Dr. Khulusi. Dr. Khulusi disagreed with OWCP’s assessment of
his report and accused OWCP of falsehoods. He asserted that repetitive job activities, like those
performed by appellant, did cause acceleration of degeneration of the low back. Dr. Khulusi
referred to his July 30, 2015 letter. The October 13, 2016 report is a restatement of the assertions
made by him in his July 30 and November 19, 2015 reports. As such this report repeats evidence
and does not constitute a basis for reopening a case under section 10.606(b)(3).12
The Board, therefore, finds that the additional reports from Dr. Mittleman and
Dr. Khulusi are insufficient to warrant further merit review of the claim. As appellant’s
applications for review did not meet any of the three requirements enumerated under section
10.606(b)(3), the Board finds that OWCP properly denied the requests for reconsideration
without reopening the case for a review on the merits.13
CONCLUSION
The Board finds that OWCP properly denied appellant’s requests for reconsideration of
the merits of his claim, pursuant to 5 U.S.C. § 8128(a).

11

Id.; James W. Scott, 55 ECAB 606 (2004).

12

Id.

13

See A.M., Docket No. 16-0499 (issued June 28, 2016); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB
630 (2006); A.K., Docket No. 09-2032 (issued August 3, 2010) (when an application for reconsideration does not
meet at least one of the three requirements enumerated under section 10.606(b), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits).

8

ORDER
IT IS HEREBY ORDERED THAT the January 3, 2017 and September 14, 2016
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: September 7, 2017
Washington, DC

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

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

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

9


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

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

Docket No. 09-216
Issued: July 23, 2009

Case Submitted on the Record

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

JURISDICTION
On October 28, 2008 appellant filed a timely appeal from a July 29, 2008 schedule award
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3(d), the Board has jurisdiction over the merits of the schedule award claim.
ISSUE
The issue is whether appellant has established more than four percent right lower
extremity impairment, for which she received a schedule award.
FACTUAL HISTORY
On March 23, 2005 appellant, a 41-year-old letter carrier, twisted her right foot when she
stepped off of a curb. She stopped working on March 24, 2005. The Office accepted appellant’s
claim for sprain/strain of the right foot and ankle and right ankle joint derangement. Appellant
was released to work four hours a day on October 5, 2005 and returned to full-time modified
duty on January 28, 2006. Following a work hardening program and functional capacity

evaluation on February 7, 2007, she was released to work eight hours per day with no restrictions
on March 24, 2007.
On January 28, 2008 appellant filed a claim for a schedule award. In a September 18,
2007 report, Dr. William Dodge, a Board-certified family practitioner, advised that she reached
maximum medical improvement on September 18, 2007. He provided an impairment rating
using the fifth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides).1 Dr. Dodge found that appellant had a 17 percent
right lower extremity impairment based on Grade 4 strength loss in plantar flexion under Tables
17-7 and 17-8 page 531 and 532. Although appellant had 0.5 centimeter (cm) muscle atrophy at
the calf, under Table 17-6 page 530, it fell into the 0 to 0.9 cm category and resulted in no
percent lower extremity impairment. Under Table 17-11 and 17-12 page 537, her abnormal
motion of the right ankle and hindfoot were consistent with one percent impairment for inversion
and one percent impairment for eversion; however, Dr. Dodge excluded that method of
evaluation as it could not be combined with the muscle strength rating under Table 17-2, page
526. Dr. Dodge concluded that appellant had 17 percent impairment for her right foot and ankle
injury.
In a September 26, 2007 progress note, Dr. Michael M. Taba, an orthopedic surgeon,
noted that appellant had some occasional pain with certain activities, mostly on the lateral side of
the sinus tarsi area. He stated that her ankle had good range of motion and she was nontender to
palpation medially. Dr. Taba also stated that appellant’s motor and sensory examinations were
intact and her gait was normal. He recommended that she continue with her home exercise
program and use an ankle brace.
On March 5, 2008 an Office medical adviser reviewed the medical record and
recommended a second opinion examination. Although Dr. Dodge recommended 17 percent
impairment for the right lower extremity based on strength loss in plantar flexion, Dr. Taba had
found that appellant’s motor and sensory examination was intact and her gait normal on
September 26, 2007.
In an April 3, 2008 report, Dr. Robert Holladay, a Board-certified orthopedic surgeon and
Office referral physician, reviewed the medical evidence of record and statement of accepted
facts. He opined that appellant had four percent lower extremity impairment. Dr. Holladay
found that the right calf had a 0.5 cm atrophy. Under Table 17-11, page 537 of the A.M.A.,
Guides, he found that the right ankle dorsiflexion of 15 degrees and plantar flexion of 42 degrees
resulted in zero percent impairment. Under Table 17-12, page 537, 20 degrees inversion and
10 degrees eversion were each two percent lower extremity impairment or a total four percent.
Dr. Holladay found that, the sensory examination of the lower extremities was normal, there was
no evidence of muscle weakness on examination and appellant was capable of walking without a
significant limp. He advised that a goniometer was used to measure loss of range of motion, a
tape measure was used to measure circumferences, a reflex hammer was used to measure
reflexes and a pin wheel was used to measure sensory loss.2 Dr. Holladay advised that the
1

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

2

A May 19, 2008 magnetic resonance imaging scan of the ankle found no evidence of a new or acute fracture and
no pathologic enhancement following contrast.

2

17 percent rating of Dr. Dodge based on loss of strength was a poor choice for evaluating
appellant’s impairment as range of motion was a more objective basis for measuring impairment.
In a May 29, 2008 report, the Office medical adviser reviewed the medical evidence. He
agreed with Dr. Holladay that appellant had four percent permanent impairment of the right leg
based on loss of range of motion. He noted that she reached maximum medical improvement on
April 3, 2008.
By decision dated July 29, 2008, the Office granted appellant a schedule award for four
percent impairment to the right lower extremity. The award covered the period April 3 to
June 22, 2008, a total 11.52 weeks of compensation.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulations4 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. The Act, however, 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.5
Section 8123(a) of the Act provide that if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary of
Labor shall appoint a third physician who shall make an examination.6 Where a case is referred
to an impartial medical specialist for the purpose of resolving a conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual and medical background,
must be given special weight.7
ANALYSIS
The Board finds that this case is not in posture for a decision.
The Office referred appellant to Dr. Holladay for the purposes of determining whether
she had any impairment of the right lower extremity. On April 3, 2008 Dr. Holladay provided
findings on physical examination and determined that she had four percent impairment to the

3

5 U.S.C. §§ 8101-8193.

4

20 C.F.R. § 10.404.

5

Ronald R. Kraynak, 53 ECAB 130 (2001).

6

5 U.S.C. § 8123(a).

7

Carl Epstein, 38 ECAB 539 (1987); James P. Roberts, 31 ECAB 1010 (1980).

3

right lower extremity based on loss of range of motion.8 The Board finds that this impairment
rating is in conformance with the A.M.A., Guides. While Dr. Holladay noted that the right calf
had a 0.5 cm atrophy, this is zero percent impairment under Table 17-6 page 530.9 Under Table
17-11, page 537 of the A.M.A., Guides, he properly found that right ankle dorsiflexion of
15 degrees and plantar flexion of 42 degrees resulted in zero percent impairment. Under Table
17-12, page 537, Dr. Holladay properly found that 20 degrees inversion equated and 10 degrees
eversion each represented two percent lower extremity impairment. This totaled four percent
right lower extremity impairment.
The September 18, 2007 impairment rating of Dr. Dodge is also in conformance with the
A.M.A., Guides. He noted the history of injury, provided findings on physical examination and
determined that appellant had 17 percent impairment to the right lower extremity based on Grade
4 strength loss in plantar flexion under Tables 17-7 and 17-8 page 531 and 532. Dr. Dodge also
noted that appellant’s 0.5 cm muscle atrophy at the calf resulted in no impairment under Table
17-6. While he found that appellant’s abnormal motion of the right ankle and hindfoot were
consistent with one percent impairment for inversion and one percent impairment for eversion
under Table 17-11 and 17-12 page 537, he properly excluded that method of evaluation from the
impairment rating as Table 17-2 page 526 prohibits it from being combined with a muscle
strength evaluation.
The Board finds that there is a conflict in medical opinion between Dr. Holladay and
Dr. Dodge regarding the impairment to appellant of her right lower extremity. Accordingly, the
Office should refer her to an impartial medical specialist for a thorough physical examination
and evaluation of her right lower extremity impairment. After such further development as it
deems necessary, the Office should issue an appropriate decision.
CONCLUSION
The Board finds that this case is not in posture for a decision.

8

Dr. Holladay noted that the sensory examination of the lower extremities was normal, there was no evidence of
muscle weakness on examination and appellant was capable of walking without a significant limp.
9

The Board notes that, under Table 17-6 page 530, this would result in a zero percent impairment.

4

ORDER
IT IS HEREBY ORDERED THAT the July 29, 2008 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: July 23, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


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

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

Docket No. 16-0861
Issued: September 27, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 22, 2016 appellant filed a timely appeal from a February 26, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than five percent permanent impairment of his
left lower extremity, for which he has received a schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances presented
in the prior appeal are incorporated herein by reference. The relevant facts are as follows.
Appellant, a 25-year-old human resources specialist, filed a traumatic injury claim (Form
CA-1) on October 22, 1976 alleging that he injured his lower back on October 9, 1976 while
lifting a portable ramp. OWCP accepted the claim for lumbar strain, herniated lumbar disc, and
lumbosacral degenerative disc disease.
In a report dated May 29, 2007, Dr. Sangarapilla Manoharan, a specialist in emergency
medicine, advised that appellant had left lower leg symptoms consisting of numbness and
tingling in his left lower extremity, as well as weakness in his left leg. He noted that appellant’s
symptoms were mainly tingling and numbness, as well as weakness in his left leg; he advised
that there might be a problem with the nerves that supplied the left lower leg. Dr. Manoharan
noted that appellant had surgery at L4-5, L5-S1 in 1976. He recommended referral to a back
specialist who could consider whether appellant’s left leg symptoms were causally related to his
accepted lower back condition.
In June 2013 appellant filed a claim for a schedule award (Form CA-7) based on a partial
loss of use of his lower extremities.
In order to determine whether appellant had any permanent impairment stemming from his
accepted lumbar strain, herniated lumbar disc and lumbosacral degenerative disc disease
conditions, OWCP referred him to Dr. Richard A. Rogachefsky, Board-certified in orthopedic
surgery, for a second opinion examination. In a February 28, 2014 report, Dr. Rogachefsky found
that appellant had nine percent lower extremity impairment pursuant to the American Medical
Association, Guides to the Evaluation of Permanent Impairment (sixth edition). He advised that
appellant underwent an L4 laminectomy and L5 discectomy on November 12, 1976.
Dr. Rogachefsky noted that appellant’s status was post decompression laminectomy, discectomy,
and neural foraminotomy; he had developed facet syndrome at the left L4-5 level, probably
segmental instability and recurrent disc herniation, with some residual motor weakness and
sensory deficit in the left lower extremity involving the L4, L5, and S1 nerve root, probably by
perineural scarring. He concluded that his current diagnosis was spinal stenosis syndrome, postlaminectomy, long-term, with two levels of low back lumbar radiculitis.
Dr. Rogachefsky noted that, under Table 16-12, page 534-35 of the A.M.A., Guides,3
appellant had a peripheral nerve impairment of the lower extremity impairment for sciatica,
based on a mild motor deficit in the left leg. This yielded seven percent lower extremity
impairment under the A.M.A., Guides. Dr. Rogachefsky determined that the date of maximum
medical improvement (MMI) was February 28, 2014.

2

Docket No. 14-1395 (issued July 6, 2015).

3

A.M.A., Guides 534-35.

2

In a March 22, 2014 report, Dr. Arthur A. Harris, a specialist in orthopedic surgery and
an OWCP medical adviser, found that appellant had five percent permanent impairment of the
left lower extremity under the sixth edition of the A.M.A., Guides resulting from his accepted
lower back conditions. He reported that appellant had undergone an L4-5 laminectomy with left
L5-S1 disc excision on November 12, 1976 and chronic left lumbar radiculopathy. Dr. Harris
noted that the sixth edition of the A.M.A., Guides did not provide a diagnosis-based impairment
or any other method to calculate residual lower extremity impairment for lumbar radiculopathy;
the July/August (2009) issue of The Guides Newsletter provided a separate approach to rating
spinal nerve impairments consistent with sixth edition methodology. He noted that, utilizing this
method, appellant had five percent permanent impairment of the left lower extremity for residual
problems with mild motor weakness stemming from lumbar radiculopathy. Dr. Harris advised
that it not did appear that Dr. Rogachefsky was aware of the approach to rate spinal nerve
impairment, citing The Guides Newsletter.
By decision dated April 21, 2014, OWCP granted appellant a schedule award for five
percent permanent impairment of the left lower extremity for the period March 4 to June 9, 2014,
for a total of 14.4 weeks of compensation.
Appellant appealed to the Board on June 2, 2014. By decision dated July 6, 2015, the
Board set aside the April 21, 2014 OWCP decision. The Board found that OWCP improperly
relied on the report of its medical adviser, Dr. Harris, which contained findings and conclusions
insufficiently thorough and comprehensible upon which to render a judgment and provided an
inadequate basis for an impairment rating. The Board noted that Dr. Harris appeared to rate
appellant’s motor deficits based on lumbar radiculopathy, but failed to identify any positive
clinical findings of peripheral nerve impairment; further, he failed to indicate the applicable
tables and figures of The Guides Newsletter he relied on in calculating his impairment rating.
The Board found that the report of Dr. Rogachefsky, the second opinion examiner, was
similarly lacking in probative value, because he failed to specify whether his nine percent lower
extremity impairment rating pertained to the left or to the right lower extremity. The Board
therefore remanded to OWCP for further development of the medical evidence and to determine
whether appellant was entitled to a schedule award for impairment of the left lower extremity
based on his accepted conditions. The Board directed OWCP to refer appellant to another
second opinion examiner for an updated medical opinion; the examiner was to be instructed to
make a specific finding as to whether appellant’s current impairment was attributable to the
accepted conditions and provide a rationalized opinion based on The Guides Newsletter, in
making findings and conclusions and in rendering his impairment rating.
OWCP referred the case back to Dr. Rogachefsky. In his October 22, 2015 report,
Dr. Rogachefsky related that appellant was seen and evaluated in his office on October 22, 2015.
In discussing appellant’s impairment rating, he noted that appellant was seen on February 28,
2014, at which time he performed an impairment evaluation using the sixth edition of the A.M.A.,
Guides. Dr. Rogachefsky noted that he had not been instructed to use The Guides Newsletter at
that time. He then noted that he had recalculated the impairment rating for the spine using The
Guides Newsletter.
Dr. Rogachefsky related that appellant had reached MMI as of
February 28, 2014. He determined that appellant’s Functional History (GMFH) grade modifier
was grade 0, Physical Examination (GMPE) and Clinical Studies (GMCS) grade modifiers were

3

not applicable, therefore, appellant had two percent permanent impairment of the left lower
extremity for mild motor deficit stemming from lumbar radiculopathy under The Guides
Newsletter.
In a January 11, 2016 report, Dr. Michael M. Katz, OWCP’s medical adviser, reviewed
Dr. Rogachefsky’s October 22, 2015 report. He agreed with Dr. Rogachefsky’s two percent
impairment rating based on mild motor deficit for lumbar radiculopathy and combined that with
an additional one percent impairment for mild sensory loss in the L4 spinal nerve, pursuant to
Table 2 of The Guides Newsletter to find that appellant had three percent permanent impairment
of the left lower extremity.
By decision dated February 26, 2016, OWCP denied appellant’s request for an additional
schedule award. It found based on the opinion of its medical adviser, Dr. Katz, appellant was not
entitled to an additional schedule award for permanent impairment of his left lower extremity,
greater than the five percent previously awarded.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, 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.6 The claimant has the burden of proving
that the condition for which a schedule award is sought is causally related to his or her
employment.7
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 procedures indicate that The Guides
Newsletter “Rating Spinal Nerve Extremity Impairment using the sixth edition”
(July/August 2009) is to be applied.8

4

Supra note 1.

5

20 C.F.R. § 10.404.

6

Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th ed. 2009). See Federal (FECA) Procedure
Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a (February 2013);
see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
7

Veronica Williams, 56 ECAB 367, 370 (2005).

8

See G.N., Docket No. 10-850 (issued November 12, 2010); see also Federal (FECA) Procedure Manual,
Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1, note 5 (January 2010). The Guides Newsletter is
included as Exhibit 4.

4

In addressing lower extremity impairments, due to peripheral or spinal nerve root
involvement, the sixth edition requires identifying the impairment Class of Diagnosis (CDX),
which is then adjusted by grade modifiers based on GMFH and if electrodiagnostic testing were
done, GMCS.9 The net adjustment formula is (GMFH-CDX) + (GMCS-CDX).10
ANALYSIS
The Board finds that this case is not in posture for decision.
The Board in its July 6, 2015 decision directed OWCP on remand to refer appellant to a
second opinion examiner other than Dr. Rogachefsky, whose opinion not only was not rendered
in accordance with The Guides Newsletter, but was lacking in probative value because he failed
to specify whether his nine percent lower extremity impairment rating pertained to the left or to
the right lower extremity. OWCP, however, disregarded the Board’s explicit instructions in its
February 26, 2016 decision and referred the case back to Dr. Rogachefsky, and asked him to
provide a new impairment rating pursuant to the July/August (2009) issue of The Guides
Newsletter.
The Board finds that Dr. Rogachefsky’s October 22, 2015 report is of limited probative
value. In his October 22, 2015 report, Dr. Rogachefsky rated appellant’s permanent impairment
under The Guides Newsletter; however, it is unclear from his report as to whether he based his
impairment rating on the February 28, 2014 examination, or his current examination. In describing
his impairment rating, Dr. Rogachefsky noted that he had examined appellant on February 28,
2014 and that he was “recalculating” his impairment rating because he had not previously been
advised to use The Guides Newsletter. He reiterated that appellant had reached MMI on
August 28, 2014, without explaining why appellant had not reached MMI in 2015, since his rating
of appellant’s permanent impairment decreased from seven percent to two percent. A medical
report is of limited probative value if it is unclear whether findings from a previous report or more
current medical examination findings of record were utilized to calculate a schedule award.11
OWCP’s medical adviser, Dr. Katz, reviewed Dr. Rogachefsky’s October 22, 2015 report
and found two percent impairment left lower extremity. He then combined that rating with an
additional one percent impairment rating for mild sensory deficit of the L4 nerve, and found that
appellant had a total of three percent permanent impairment rating of the left lower extremity
under Table 2 of The Guides Newsletter. OWCP relied on Dr. Katz’s opinion based upon review
of Dr. Rogachefsky’s report and denied an award for additional impairment for the left lower
extremity in its February 26, 2016 decision, despite the fact that it was unclear as to whether
Dr. Rogachefsky based his 2015 impairment rating on new examination findings, and despite the
fact that the Board had directed it to refer appellant to a different second opinion examiner in its
July 6, 2015 decision.

9

A.M.A., Guides 533.

10

Id. at 521.

11

See J.R., Docket No. 15-1847 (issued March 4, 2016).

5

The Board, therefore, finds that OWCP erred by disregarding the plain face of the
instructions it set forth in its July 6, 2015 decision. Accordingly, the Board will set aside
OWCP’s February 26, 2016 decision and remand for referral of appellant, the case record and a
statement of accepted facts to an appropriate second opinion medical specialist to evaluate
appellant’s permanent impairment of his left lower extremity.
On remand, OWCP should instruct the new second opinion examiner to make a specific
finding as to whether appellant’s left lower extremity impairment was attributable to the
accepted conditions. The second opinion examiner shall then provide an opinion regarding the
degree of permanent impairment of appellant’s left lower extremity, based on the
July/August 2009 issue of The Guides Newsletter, and provide an opinion as to the date of MMI.
After such further development of the record as it deems necessary, OWCP shall issue a de novo
decision.12
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the February 26, 2016 decision be set aside and
remanded in accordance with this decision.
Issued: September 27, 2016
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
12

The Board notes that appellant has contested the date of MMI. This issue will be addressed on remand by the
new second opinion physician.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J, Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
SYSTEMS COMMAND, San Diego, CA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-1635
Issued: February 18, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 1, 2013 appellant filed a timely appeal of the May 23, 2013 decision of the
Office of Workers’ Compensation Programs (OWCP) which found that she received an
overpayment of compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
$11,173.55 overpayment of compensation for the period June 1 to August 27, 2011; and
(2) whether it properly determined that she was at fault in creating the overpayment of
compensation, thereby precluding waiver of recovery.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On January 16, 2007 appellant, then a 46-year-old lead aircraft mechanic, injured his
back while picking up components. OWCP accepted his claim for a lumbar sprain, degeneration
of a lumbar and lumbosacral intervertebral disc, displacement of a lumbar intervertebral disc
without myelopathy and spinal stenosis of the lumbar region. Appellant stopped work on
January 16, 2007 and returned on January 18, 2007. He worked intermittently thereafter. On
April 24, 2009 OWCP accepted that appellant sustained a recurrence of total disability beginning
February 13, 2009.
In a letter dated April 29, 2009, OWCP outlined appellant’s entitlement to compensation
benefits and his responsibility to return to work in connection with the accepted injury.
Appellant was placed on the periodic compensation rolls. In an attached EN1049, it provided:
“RETIREMENT BENEFITS. You must report to OWCP any retirement income
you receive from any federal establishment. This is because a person who
receives compensation benefits under FECA is not permitted to receive benefits
under the Civil Service Retirement System (CSRS) or the Federal Employees’
Retirement System (FERS).”
Appellant received compensation by direct deposit payments.
On May 25, 2011 OWCP referred appellant for vocational rehabilitation services. In a
September 12, 2011 telephone log, a rehabilitation counselor contacted OWCP to advise that
appellant reported being approved for retirement benefits and receiving retirement checks.
Appellant would not provide the rehabilitation counselor with a copy of the retirement benefit
letter. On September 6, 2011 he completed an EN1032 form and noted under Part D, other
federal benefits or payments, he had received a disability retirement check during the past 15
months.
In a September 13, 2011 memorandum, OWCP contacted appellant and spoke to his wife,
who confirmed that he was receiving the Office of Personnel Management (OPM) benefits
effective June 1, 2011. In a compensation termination sheet dated September 13, 2011, it noted
that he was receiving OPM benefits effective June 1, 2011. OWCP found that for the period
June 1 to August 27, 2011 appellant was also paid net OWCP compensation of $11,173.55.
In a September 14, 2011 letter, OWCP notified appellant of his current rate of
compensation. It advised that it had been informed that “you are also receiving or may be
entitled to receive benefits provided by OPM under the CSRS or the FERS.” The letter stated:
“Annuity benefits paid by OPM (including any lump[-]sum payment made as a
part of an alternative annuity under CSRS) and benefits for wage loss paid by
OWCP are not payable for the same period of time. Employees entitled to both
OWCP and OPM benefits must elect which benefit to receive. This election is
not irrevocable and can be changed should you decide that the benefits of the

2

other plan are more advantageous. Should you elect OPM benefits, you will still
be entitled to medical benefits for the effects of the injury on the date above at
OWCP expense.”
OWCP attached an election of benefits form to its letter and requested that he complete and
return the form. The form stated: “I understand that I am not entitled to receive FECA benefits
and CSRS/FERS benefits concurrently (except for a schedule award).”
In a letter dated November 15, 2011, appellant submitted a revised EN1032 and clarified
the start of his retirement benefits as of May 31, 2011. He reported being confused because an
OPM form dated May 31, 2011 noted that he was approved for interim payments until his
disability retirement application process was completed. Appellant indicated that his disability
retirement application was still in process. He noted that he received a disability retirement
check effective May 31, 2011.
In an undated election benefits form, appellant elected to receive FECA benefits effective
May 31, 2011.
In a letter dated January 9, 2012, OWCP notified appellant that it received his election of
benefits form electing its benefits effective May 31, 2011. It also noted that his retirement was
approved and he had received a retirement annuity since September 12, 2011. OWCP asked that
appellant confirm his election and informed him that no action would be taken on his election
form until it received a response. Appellant did not respond. In a May 14, 2012 letter, OWCP
notified OPM that appellant elected to receive benefits from OPM effective May 31, 2011 in lieu
of compensation benefits under FECA.
In a March 28, 2013 letter, OWCP informed appellant that it had preliminarily found that
he received a $11,173.55 overpayment of compensation for the period June 1 to August 27,
2011, because he received FECA monetary compensation through August 27, 2011 after he
started receiving OPM benefits. It found that he was at fault in creating the overpayment
because he was aware or should have been reasonably aware that he was not entitled to receive
FECA disability compensation and OPM annuity benefits for the same period. OWCP found
that appellant willfully received dual benefit compensation from June 1 to August 27, 2011 and
did not advise OWCP of his retirement benefits until three months after receipt.2 It noted that on
April 29, 2009 it advised him that a person who received FECA compensation benefits was not
permitted to receive retirement benefits. OWCP advised appellant of his options if he disagreed
with its preliminary findings, including a right to a prerecoupment hearing and instructed him to
complete an enclosed overpayment recovery form and submit supporting documentation.
On April 26, 2013 appellant requested a decision based on the written evidence and
waiver of the overpayment. He agreed that the overpayment occurred and did not dispute its
amount. Appellant contented that he was totally disabled and in receipt of FECA benefits when
he applied for disability retirement on November 10, 2010. He stated that he spent most of 2011
2

The record shows that appellant received direct deposit payments covering May 8 to June 4, 2011 (issued on
June 4, 2011); June 5 to July 2, 2011 (issued on July 2, 2011); July 3 to 30, 2011 (issued on July 30, 2011); and
July 31 to August 27, 2011 (issued on August 27, 2011).

3

under the influence of prescribed narcotics for his pain. On May 31, 2011 OPM approved
appellant’s disability retirement and shortly thereafter his FECA benefits stopped and he thought
that OPM and FECA had coordinated. Although he was informed of the 2009 correspondence
from OWCP to notify it regarding his disability benefits, he did not remember it in 2011.
Appellant vaguely recalled a conversation with a claims examiner in September 2011 but did not
remember what he said. He was unaware that he could choose between FECA and OPM
benefits and believed electing OPM benefits was mandatory. Appellant stated that his failure to
make an election was based on a lack of understanding. He asserted that repaying the
overpayment would cause financial hardship and that his disability retirement annuity, finalized
on March 20, 2013, reduced his income from $3,673.00 to $1,905.00. Appellant submitted a
May 31, 2011 letter from OPM approving his disability retirement application. A June 15, 2011
OPM letter advised that he was in an interim payment status while OPM completed processing
his application. An April 26, 2013 overpayment questionnaire noted total monthly income of
$7,779.00 and expenses of $8,880.51. Appellant submitted pay stubs from his wife’s employer
showing net pay of $2,163.34 and $2,083.62 from March 17 to April 13, 2013.
In a May 23, 2013 decision, OWCP found that appellant was at fault in receiving an
$11,173.55 overpayment from June 1 to August 27, 2011 that occurred because he received
FECA compensation benefits at the same time he received OPM retirement benefits. It found
that he was at fault in creating the overpayment because he was aware or should have been
reasonably aware that he was not entitled to receive FECA disability compensation and OPM
benefits for the same period. Appellant notified OWCP on September 12, 2011 that he retired
and was receiving OPM benefits effective June 1, 2011. OWCP advised that he knowingly
received dual benefits from June 1 to August 27, 2011 and did not advise OWCP of his
retirement benefits until three months later. It noted informing appellant on April 29, 2009, to
advise if he received retirement benefits. OWCP requested that he either repay the overpaid
amount in full or contact OWCP to arrange a repayment plan.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.3
Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, he
or she may not receive salary, pay or remuneration of any type from the United States, except for
services actually performed or for certain payments related to service in the Armed Forces,
including benefits administered by the Department of Veterans Affairs unless such benefits are
payable for the same injury or the same death being compensated for under FECA.4 The
implementing regulations provide that a beneficiary may not receive wage-loss compensation

3

5 U.S.C. § 8102.

4

Id. at § 8116(a).

4

concurrently with a federal retirement or survivor annuity. The beneficiary must elect the benefit
that he or she wishes to receive.5
ANALYSIS -- ISSUE 1
The record establishes that appellant’s claim was accepted for several lumbar conditions
and he was paid wage-loss compensation benefits under FECA. The record establishes that he
also applied for retirement that became effective on May 31, 2011 and he received OPM benefits
on June 1, 2011. The record supports that appellant simultaneously received OPM and FECA
benefits for the period June 1 to August 27, 2011. OWCP properly determined that for the
period June 1 to August 27, 2011, appellant received an overpayment in the amount of
$11,173.55 due to his receipt of dual benefits. Appellant does not dispute that he received the
overpayment in question, nor did he dispute the amount of the overpayment. OWCP explained
how the overpayment occurred and provided this to him with the preliminary notice of
overpayment. The Board finds that it properly determined the amount of the overpayment that
covered the period June 1 to August 27, 2011.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA provides that “[a]djustment 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 this subchapter or would be
against equity and good conscience.”6 No waiver of an overpayment is possible if the claimant
is at fault in creating the overpayment.7
On the issue of fault, 20 C.F.R. § 10.433(a) provides that an individual is with fault in the
creation of an overpayment who: (1) made an incorrect statement as to a material fact which the
individual knew or should have known to be incorrect; or (2) failed to furnish information which
the individual knew or should have known to be material; or (3) with respect to the overpaid
individual only, accepted a payment which the individual knew or should have been expected to
know was incorrect.8
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.9

5

20 C.F.R. § 10.421(a).

6

5 U.S.C. § 8129(b).

7

Gregg B. Manston, 45 ECAB 344 (1994).

8

20 C.F.R. § 10.433(a). See Kenneth E. Rush, 51 ECAB 116 (1999).

9

Id. at § 10.433(b).

5

ANALYSIS -- ISSUE 2
OWCP applied the third standard in determining that appellant was at fault in creating the
overpayment. For it to establish that he was with fault in creating the overpayment of
compensation, it must establish that, at the time he accepted the compensation checks in
question, he knew or should have known the payments were incorrect.10
In this case, appellant made an election of benefits to receive OPM benefits in lieu of
FECA benefits prior to June 1, 2011. The record establishes that on September 13, 2011 OWCP
contacted him and spoke to his wife who confirmed that he was receiving OPM benefits
effective June 1, 2011. Similarly, a compensation termination sheet dated September 13, 2011,
noted that appellant was receiving OPM benefits effective June 1, 2011. OWCP determined that
for the period June 1 to August 27, 2011 he was also paid net OWCP compensation of
$11,173.55.
The Board finds that, in these circumstances, a claimant, who makes an election of
benefits, between FECA and OPM may be charged with knowledge that subsequent dual
payments are incorrect.11 As noted, OWCP erroneously issued wage-loss compensation for total
disability for the period June 1 to August 27, 2011. Appellant was not entitled to monetary
compensation for this period because he received disability retirement benefits from OPM. Even
if the overpayment resulted from negligence on the part of OWCP, this does not excuse the
employee from accepting payments which he knew or should have known were incorrect.12 In
an April 29, 2009 letter, OWCP advised appellant that he was placed on the periodic
compensation rolls. An attached EN1049 OWCP notified him:
“RETIREMENT BENEFITS. You must report to OWCP any retirement income
you receive from any federal establishment. This is because a person who
receives compensation benefits under FECA is not permitted to receive benefits
under CSRS or FERS.”
The form specifically notified appellant that he could not receive FECA benefits at the
same time he received retirement benefits.
In response to the preliminary overpayment finding, appellant asserted that he was
heavily medicated throughout the time in question and did not understand that he received an
overpayment of compensation. He did not submit any probative evidence to support that he was
unable to understand that he could not accept FECA wage-loss compensation at the same time he

10

See Claude T. Green, 42 ECAB 174, 278 (1990).

11

See C.G., Docket No. 12-936 (issued April 22, 2013) (where appellant was receiving wage-loss compensation
benefits by direct deposit and elected to receive OPM benefits and thereafter received dual benefits creating an
overpayment of compensation, the Board found that she was at fault because she was aware that she could not be in
receipt of dual benefits after her election of benefits).
12

See Russell E. Wageneck, 46 ECAB 653 (1995).

6

received OPM retirement benefits.13 As the employee is not without fault in the creation of the
overpayment, he is not eligible for waiver of recovery of the overpayment. OWCP is required by
law to recover the overpayment.14
The facts show that appellant willingly received wage-loss compensation from June 1 to
August 27, 2011 while also in receipt of prohibited OPM retirement benefits. Appellant did not
advise OWCP of his retirement benefits until September 12, 2011, three months after receipt of
the benefits. This, together with the April 29, 2009 warning letter, establishes that he knowingly
should have been aware that he was not entitled to accept wage-loss compensation for a period in
which he was also receiving disability retirement benefits through OPM. The payments were
incorrect.
For these reasons, OWCP properly found that appellant accepted wage-loss
compensation from June 1 to August 27, 2011 while also receiving retirement benefits from
OPM which he knew or should have known was incorrect. As appellant was at fault under the
third fault standard, outlined above, recovery of the $11,173.55 overpayment of compensation
may not be waived.15
On appeal, appellant contends that he was incompetent to understand that he was
receiving an overpayment of compensation. As explained, however, he did not submit any
medical evidence establishing that he did not have the capacity to understand that he received
incorrect payment during the period in question.
CONCLUSION
The Board finds that appellant received an overpayment of compensation from June 1 to
August 27, 2011 and that appellant was at fault in creating the overpayment.

13

See P.L., (G.L.), Docket No. 09-1488 (issued March 2, 2010) (where the Board held that appellant did not
submit any medical or factual evidence establishing that he was mentally incompetent to understand that he was
receiving an overpayment of compensation or lacked the capacity to complete the EN1032 forms dated 1986 to
2008).
14

No waiver of an overpayment is possible if the claimant is at fault in creating the overpayment. L.J., 59 ECAB
264 (2007).
15

As OWCP did not direct recovery of the overpayment from continuing compensation payments, the Board does
not have jurisdiction over the recovery of the overpayment. See Desiderio Martinez, 55 ECAB 245 (2004).

7

ORDER
IT IS HEREBY ORDERED THAT the May 23, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 18, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

8