United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.B., Appellant
and
DEPARTMENT OF JUSTICE, IMMIGRATION
& NATURALIZATION SERVICE, Miami, FL,
Employer
__________________________________________

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Docket No. 07-1417
Issued: October 16, 2007

Appearances:
Lawrence Berger, Esq. and Georgia Deplas, Esq., for the appellant
Office of Solicitor, for the Director

Case Submitted on the Record

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

JURISDICTION
On February 27, 2007 appellant filed a timely appeal from a February 13, 2007 nonmerit
decision of the Office of Workers’ Compensation Programs denying his request for
reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
this decision. Because more than one year has elapsed between the last merit decision, dated
January 31, 2006 and the filing of this appeal, the Board lacks jurisdiction to review the merits of
appellant’s claim.1
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

1

The Board’s jurisdiction to consider and decide appeals from final decisions of the Office extends only to those
final decisions issued within one year prior to the filing of the appeal. See Oel Noel Lovell, 42 ECAB 537 (1991);
20 C.F.R. § 501.3(d)(2).

FACTUAL HISTORY
This is the second time this case has been before the Board on appeal. In an order issued
January 3, 2005, the Board reversed the Office’s July 23, 2004 decision denying appellant’s
request for an oral hearing as untimely.2
On August 27, 2003 appellant, then a 50-year-old immigration inspector, filed a
traumatic injury claim alleging that he bumped his head on the inside corner of his booth, after
bending to pick up a piece of paper that had fallen from a passport. He stated that, although he
felt dizzy, he continued working. Later, appellant had a seizure.
Appellant submitted emergency department records dated July 21, 2003 from
Cedars Medical Center. Dr. Pedro Cardich, a Board-certified internist, stated that appellant was
brought into the emergency department after experiencing an apparent seizure during his sleep.
His notes indicated that, while at work the day before, appellant had experienced some
paresthesias, numbness associated with a tingling sensation in his right upper extremity.
Dr. Francis N. Crespo, a Board-certified cardiologist, diagnosed new onset seizure.
Appellant submitted a September 2, 2003 witness statement from George Caraccioli, II,
coworker, who indicated that on July 20, 2003, while conducting inspections, he heard appellant
accidentally hit his head against the primary inspection desk, as he returned to a standing
position after picking up a document that had fallen to the floor. At the time of the alleged
incident, Mr. Caraccioli was in the booth beside appellant and was allegedly able to hear his head
make contact with the wood. He stated that appellant later appeared red-faced and fatigued.
The record contains work excuses from Dr. Cardich from August 6 to 13, 2003 and a
July 24, 2003 cardiac catheterization report.
Appellant submitted an August 8, 2003
authorization for medical treatment, wherein he provided a description of his alleged July 20,
2003 injury. He indicated that he had hit his head on the edge of a counter, after picking up a
paper from the floor and that he later had a seizure.
On January 15, 2004 appellant filed a claim for a recurrence of disability as of
December 20, 2003, when he allegedly had a second seizure. He submitted reports from
Dr. Cardich dated December 20, 2003, January 19 and 22 and February 25, 2004. On
December 20, 2003 Dr. Cardich indicated that appellant had been brought into the emergency
room on that date after experiencing a seizure. He noted that appellant had been seen on July 21,
2003 “when he apparently presented an event following a trauma to his head.” Dr. Cardich
provided diagnoses of seizure disorder and status post-head trauma. In a January 19, 2004
follow-up report, he noted that appellant was experiencing painful sensations in the area of the
trauma he sustained. Dr. Cardich stated: “[that] these difficulties could be related to his
traumatic brain event.” In a January 22, 2004 attending physician’s report, he stated that the date
of his first examination of appellant was December 20, 2003. Dr. Cardich diagnosed seizure
disorder and traumatic brain injury and indicated that his condition “could have been triggered
by head trauma sustained at work.” On February 25, 2004 he indicated that appellant felt pain
and a sensation of pressure in the left hemisphere, where he sustained the trauma after falling.
2

Docket No. 04-2030 (issued January 3, 2005).

2

On December 20, 2003 Dr. Juan R. Del Rio, a Board-certified nephrologist, provided a
diagnosis of seizure disorder. In an undated report, Dr. Tony Abassi, a treating physician,
diagnosed new onset seizure disorder, headache and obesity. The record contains a February 25,
2004 work excuses from Dr. Cardich; a July 21, 2003 report of an electroencephalography; a
December 20, 2003 report of a computerized tomography scan of the brain; a September 4, 2003
case status sheet; and an attorney authorization letter dated April 23, 2004, appointing Antonio
Lozada, union vice president, as his authorized representative. In a statement dated February 25,
2004, appellant indicated that he had not filed an injury report because he believed that his
headache was merely the beginning of the flu; that he had not noticed any blood or other
“outside injury;” and that he was still able to perform his work after the alleged incident. He
stated that, after he bumped his head on July 20, 2003, he experienced mild clumsiness and
dizziness; a mild tingling sensation in his hands; mild heaviness; and a heavy headache
sensation. Later that night, appellant felt pressure in his head.
The Office forwarded the case file to the district medical director for review and an
opinion as to whether appellant’s alleged July 20, 2003 head injury was causally related to his
seizures. On May 11, 2004 a district medical adviser opined that the record did not reflect that
appellant suffered head trauma prior to his first seizure on July 20, 2003. He noted that appellant
had been suffering right arm numbness and parasthesias and right-sided headaches, prior to the
seizure. The district medical adviser’s electroencephalogram and magnetic resonance imaging
scan were both negative. He concluded that the record did not establish a causal relationship
between head trauma and seizures.
By decision dated May 12, 2004, the Office denied appellant’s claim. The Office found
that the medical evidence did not demonstrate that his claimed medical condition was related to
the established work event.
On June 11, 2004 appellant requested an oral hearing, contending that he had established
a causal relationship between his July 20, 2003 traumatic injury and his diagnosed seizure
condition. By decision dated July 23, 2004, the Office denied appellant’s request as untimely.
By order dated January 3, 2005, the Board reversed the Office’s July 23, 2004 decision and
remanded the case to the Office for an oral hearing.3
By agreement of appellant and the hearing representative, in lieu of an oral hearing, a
telephone hearing was conducted on November 10, 2005. Appellant reiterated the history of his
alleged injury, indicating that he had experienced headaches in the days prior to the July 20,
2003 incident. He stated that he had never had seizures prior to the injury. Appellant indicated
that he had informed his physicians at the time of his first hospitalization that he had bumped his
head on July 20, 2003, prior to his first seizure.
Subsequent to the hearing, appellant submitted a letter dated May 28, 2004 requesting
assistance from the union; letters dated June 20 and September 16, 2005 asking the Board to
enforce its January 3, 2005 order; an undated letter from Dr. Martin Dones, a Board-certified
internist, who stated that, based upon his review of the medical evidence, “the only reasonable
conclusion is that [appellant] is suffering from seizure disorder related to the incident of July 20,
3

Id.

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2003;” an August 21, 2003 report, bearing an illegible signature, reflecting a diagnosis of new
onset seizure; reports dated July 21 and December 20, 2003 from the City of Miami Fire and
Rescue; a May 28, 2004 memorandum to all employees from the employing establishment,
indicating that appellant was out for several weeks due to medical treatment for a seizure
disorder and traumatic brain injury; an undated request for administrative leave to prepare for his
hearing; and the Federal Employees’ Compensation Act, Program Memorandum No. 203, dated
December 22, 1975, on the issue of causal relationship. Appellant submitted a statement dated
August 3, 2003, relating the alleged events of July 20, 2003, stating that, on the date in question,
he “was feeling dizzy and rare because of a hit in [his] head bending over to look for an I-SS1
that fell to the floor from a passport.” He stated that he had a seizure after he went to bed later
that night. Appellant submitted statements dated January 3, October 10, November 14 and
December 10, 2005, reiterating his belief that his condition was causally related to the alleged
July 20, 2003 incident and alleging abuse of discretion on the part of the Office.
Appellant submitted statements from family and coworkers who observed him at times
following the alleged July 20, 2003 incident, including: a February 20, 2004 statement from
Carlos Rodriguez; a May 17, 2004 statement from appellant’s parents; a May 11, 2004 statement
from Edwin Justiniano, a neighbor; an August 6, 2003 statement from Mr. Lozada; a May 23,
2005 statement from R. Landau; a June 3, 2005 statement from Hugo L. Roche; and a March 16,
2005 statement from Alfonso A. Rodriguez.
Medical reports from Dr. Abassi dated August 11, 2003 reflected a diagnosis of syncopal
episodes and noted appellant’s report of bumping his head on a counter on July 20, 2003. In an
emergency room report dated December 20, 2003, Dr. Del Rio diagnosed new onset seizure. His
notations included: “head trauma at work July 2003 and possibly had seizure.”
In a June 11, 2004 statement, Dr. Cardich indicated that, during his July 2003 hospital
admission, appellant informed him that he had sustained a head trauma at work a few hours prior
to being admitted. He stated: “It is reasonable probable (sic) that [appellant] has a posttraumatic seizure disorder secondary to that incident.”
In a report dated October 19, 2005, Dr. Carlos A. Zubillaga, a Board-certified
neurologist, opined that appellant’s seizures were caused by a head injury suffered on July 20,
2003, given that there was “absolutely no history of any events of the same nature prior to the
head injury and all prior evaluations have failed to show any other reason.” He stated that he had
reviewed the medical records from appellant’s hospital admission on July 21, 2003, as well as
the second admission on December 20, 2003. Dr. Zubillaga noted that the records had
“wrongfully omitted that [appellant] had suffered a head injury at work on July 20, 2003, which
was the cause of his seizures.”
By decision dated January 31, 2006, the hearing representative affirmed and modified the
Office’s May 12, 2004 decision. Noting inconsistencies in the evidence, the representative found
that neither the factual nor medical evidence of record contemporaneous to the alleged July 20,
2003 incident, established that appellant sustained a head injury as alleged.
On January 9, 2007 Georgia Deplas, Esquire requested reconsideration of the January 31,
2006 decision on behalf of appellant, contending that the fact of injury had been established by

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the evidence of record.4 Ms. Deplas argued that the inconsistencies in the record were not the
fault of appellant and that, using proper analysis, only one conclusion could be reached in this
case, namely that he suffers from post-traumatic seizure disorder which is causally related to his
on-the-job injury.
In support of his reconsideration request, appellant submitted copies of the hearing
representative’s January 31, 2006 decision and the Office’s May 12, 2004 decision, as well as
duplicates of previously submitted documents, including: a copy of the district medical adviser’s
May 11, 2004 report; a copy of the August 8, 2003 authorization for medical treatment; a copy of
the September 2, 2003 witness statement from Mr. Caraccioli; and a copy of the September 4,
2003 case status sheet.
By decision dated February 13, 2007, the Office denied appellant’s request for
reconsideration, finding the evidence submitted to be cumulative and duplicative and, therefore,
insufficient to warrant merit review.
LEGAL PRECEDENT
Under section 8128(a) of the Act,5 the Office has the discretion to reopen a case for
review on the merits. The Office must exercise this discretion in accordance with the guidelines
set forth in section 10.606(b)(2) of the implementing federal regulations,6 which provides that a
claimant may obtain review of the merits of his or her written application for reconsideration,
including all supporting documents, which sets forth arguments and contains evidence that:
“(1) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(2) Advances a relevant legal argument not previously considered by [the
Office]; or
“(3) Constitutes relevant and pertinent new evidence not previously considered by
[the Office].”
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.7

4

The Board notes that Ms. Deplas was not appellant’s authorized representative at the time the reconsideration
request was made.
5

5 U.S.C. § 8128(a).

6

20 C.F.R. § 10.606(b).

7

Id.

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Evidence that repeats or duplicates evidence already in the case record has no evidentiary
value and does not constitute a basis for reopening a claim for merit review.8
ANALYSIS
The Office accepted Ms. Deplas’ January 9, 2007 letter as a timely request for
reconsideration. However, the request neither alleged, nor demonstrated that the Office
erroneously applied or interpreted a specific point of law and did not advance a relevant legal
argument not previously considered by the Office. Ms. Deplas merely reiterated appellant’s
contention that the fact of injury had been established by the evidence of record. Consequently,
appellant is not entitled to a review of the merits of his claim, based on the first and second
above-noted requirements under section 10.606(b)(2).
In support of his request for reconsideration, appellant submitted copies of documents
previously received and considered by the Office. As the documents are duplicative, they do not
constitute new evidence not previously considered by the Office.9 Therefore, the Office properly
determined that this evidence did not constitute a basis for reopening the case for a merit review
under the third requirement under section 10.606(b)(2).
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of his claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied his request for reconsideration.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

8

Denis M. Dupor, 51 ECAB 482 (2000).

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Id.

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ORDER
IT IS HEREBY ORDERED THAT the February 13, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 16, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
U.S. POSTAL SERVICE, WEST ROXBURY
STATION, West Roxbury, MA, Employer
__________________________________________

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Appearances:
Daniel B. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-0313
Issued: August 25, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 24, 2014 appellant, through counsel, filed a timely appeal from the
May 28, 2014 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 sustained a work-related acceleration of his hip
osteoarthritis.
FACTUAL HISTORY
On April 11, 2013 appellant, a 46-year-old letter carrier, filed an occupational disease
claim alleging that his work duties had caused a permanent acceleration of his bilateral hip

1

5 U.S.C. § 8101 et seq.

osteoarthritis. X-rays from December 10, 2012 showed end-stage degenerative osteoarthritis of
the right hip. The joint space on the left was well maintained.
Dr. Byron V. Hartunian, an orthopedic surgeon, evaluated appellant on March 28, 2013.
He reviewed the medical records concerning appellant’s hip arthritis, particularly the right side
with secondary overuse of the left, resulting in soft-tissue inflammation as well as arthritis.
Dr. Hartunian reviewed appellant’s statement describing his job duties as a letter carrier. He also
reviewed a document entitled duties and requirements of a letter carrier. Dr. Hartunian related
appellant’s history and complaints. He described his findings on physical examination and
diagnosed the following: right hip arthritis with two millimeters of cartilage interval at the
superior femoral-acetabular joint; early degenerative arthritis of the left hip; and greater
trochanteric bursitis and iliotibial band tendinitis of the left hip – chronic.
Dr. Hartunian opined that the repetitive heavy physical activities that appellant performed
for over 26 years had increased stresses though appellant’s hips, causally contributing to the
permanent progression of his arthritic condition. He explained the progressive nature of the
underlying arthritic process and how the performance of laborious physical duties accelerated the
loss of articular surface. Dr. Hartunian also described how the severe right hip condition put
excess stresses on appellant’s left hip. He observed that appellant’s case was no different from
dozens of other letter carrier cases he had seen and OWCP had accepted.
In a decision dated July 11, 2013, OWCP denied appellant’s occupational disease claim.
An OWCP hearing representative set aside the denial and remanded the case for further action,
including obtaining an addendum from Dr. Hartunian.
Dr. Hartunian reviewed the statement of accepted facts and the questions posed by
OWCP. He explained that peer review and published orthopedic literature substantiated that
osteoarthritis/degenerative arthritis was not a part of the normal aging process. Appellant’s
strenuous job duties definitely contributed to the degenerative arthritis of his hips. The specific
movement required by these duties aggravated and accelerated preexisting degenerative arthritis.
There was reasonable medical evidence that factors contributing to the progression of
osteoarthritis of the joint included heavy work, standing, climbing, squatting, twisting, pivoting,
bending, stooping, and reaching of the kind and type engaged in by appellant, as opposed to
those who held sedentary occupations. “Stresses on the hip joints increase the rate at which the
articular cartilage deteriorates resulting in a diminished joint space, which is the definition of
arthritis.” There was no question, Dr. Hartunian stated, that the stresses appellant’s letter carrier
duties placed on his arthritically-diseased hips would permanently accelerate the arthritic process
as described.
Dr. Hartunian reviewed appellant’s activities outside of federal employment and noted
that they were “closed chain” activities, or nonimpact loading. These were just the type of
activities he prescribed for patients with arthritis to strengthen the arthritically-inflicted joints.
Even though these activities may have contributed to appellant’s overall condition, there was still
an acceleration of hip arthritis over the years caused by the repetitive stresses of his job duties.
Dr. Hartunian explained that the question was not the degree to which other activities accelerated
appellant’s osteoarthritis or which was the most contributing factor. That could not be
determined. “[Appellant’s] hips do not know whether he is delivering mail or playing golf.”

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Rather, the question was whether appellant’s federal employment contributed in any degree to
the acceleration and there was no question in Dr. Hartunian’s mind that postal duties were a
contributing factor. This was supported by peer reviewed and published occupational medicine
research, which showed that early onset osteoarthritis was more often seen in heavy labor
occupations where premature wearing out of the joints was more common. Dr. Hartunian listed
the significant research supporting these conclusions.
An OWCP medical adviser reviewed Dr. Hartunian’s opinion and questioned how one
could scientifically explain that only one hip exhibited severe osteoarthritis while the
contralateral hip demonstrated no evidence of that process. The medical adviser suggested that if
there were indeed a systemic mechanism triggered by appellant’s work factors, a reasonable
scientific observer would expect appellant to have bilateral hip osteoarthritis. The medical
adviser opined that the fact that only one joint was involved disproved Dr. Hartunian’s theory of
causation.
The medical adviser also questioned Dr. Hartunian’s medical assumptions. He observed
that aging was a well-known and universally accepted causal factor in the development of
osteoarthritis, that there was very strong evidence, for example, that the risk of osteoarthritis in
the knee increased with age and there was little to no association between hip osteoarthritis and
standing for long hours or repetitive lifting, and no association seen between total physical
activity and total hip arthroplasty. There was some evidence of an association between specific
occupational activities, but overall insufficient evidence to assign causation to these jobs. The
medical adviser added that if one could not determine, as Dr. Hartunian contended, the degree to
which other activities accelerated appellant’s osteoarthritis, then that was precisely the reason
causal relationship could not be established with appellant’s work duties.
In a decision dated May 28, 2014, OWCP denied appellant’s occupational disease claim.
It found that the weight of the medical evidence rested with the opinion of the medical adviser,
as Dr. Hartunian did not address the reason appellant had developed only unilateral hip
osteoarthritis.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.2 An employee seeking benefits under FECA
has the burden of proof to establish the essential elements of his or her claim. When an
employee claims that he or she sustained an injury in the performance of duty, he or she must
submit sufficient evidence to establish that he or she experienced a specific event, incident, or
exposure occurring at the time, place, and in the manner alleged. He or she must also establish
that such event, incident, or exposure caused an injury.3

2

5 U.S.C. § 8102(a).

3

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

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Causal relationship is a medical issue4 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the claimant,5 must be
one of reasonable medical certainty,6 and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the established incident or factor
of employment.7
ANALYSIS
Appellant claims that his work duties caused a permanent acceleration of his bilateral hip
osteoarthritis. He, therefore, bears the burden of proof to establish the essential elements of his
claim. OWCP does not dispute the duties he performed as a letter carrier for many years.
Appellant has thus met his burden to establish that he experienced a specific event, incident, or
exposure occurring at the time, place, and in the manner alleged. The question that remains is
whether these work duties accelerated his osteoarthritis.
Dr. Hartunian, the treating orthopedic surgeon, offered a reasoned opinion supporting
appellant’s claim. His opinion was clear and unequivocal. Dr. Hartunian based his opinion on a
review of the duties that appellant’s performed as letter carrier and on medical literature. He
noted that studies cited heavy labor, heavy loading activities, and repeated local stresses as
causative contributing factors for the development and progression of lower extremity arthritis.
It was therefore clear to Dr. Hartunian that the strenuous duties appellant performed for over 26
years had accelerated his hip osteoarthritis.
To demonstrate that heavy labor activities did, in fact, accelerate appellant’s
osteoarthritis, there must be some evidence of acceleration in the medical record, some evidence
of the accelerated loss of articular surface. Otherwise, Dr. Hartunian’s opinion is nothing more
than speculation. He has explained how acceleration was medically possible, but he has
identified no evidence that this is what actually happened to appellant. Dr. Hartunian has instead
presented a hypothesis that may or may not be true. The Board has held that medical texts and
excerpts from publications are of no evidentiary value in establishing the necessary causal
relationship, as they are of general application and are not determinative of whether the specific
condition claimed was causally related to the particular employment injury involved.8 If
appellant’s duties as a letter carrier altered or materially affected his osteoarthritis, Dr. Hartunian
did not indicate how the medical record demonstrated this.

4

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

5

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

6

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

7

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

8

Gaetan F. Valenza, 35 ECAB 763 (1984); Kenneth S. Vansick, 31 ECAB 1132 (1980).

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The medical adviser observed that it was not clear why appellant developed osteoarthritis
unilaterally. The x-rays obtained on December 10, 2012 showed end-stage degenerative
osteoarthritis of the right hip, but a well-maintained joint space on the left.
The Board finds that the medical opinion evidence submitted to support appellant’s
occupational disease claim is insufficiently rationalized to establish the essential element of
causal relationship. The Board therefore finds that he has not met his burden to establish that he
sustained a work-related acceleration of his hip osteoarthritis. The Board will affirm OWCP’s
May 28, 2014 decision denying appellant’s claim for compensation.
CONCLUSION
The Board finds that appellant has not met his burden to establish that he sustained a
work-related acceleration of his hip osteoarthritis.
ORDER
IT IS HEREBY ORDERED THAT the May 28, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 25, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF JUSTICE, FEDERAL
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CORRECTIONAL INSTITUTION, El Reno, OK, )
Employer
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__________________________________________ )
C.E., Appellant

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

Docket No. 11-637
Issued: October 14, 2011

Case Submitted on the Record

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

JURISDICTION
On January 13, 2011 appellant filed a timely appeal from the December 2, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which increased his
schedule award. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than an 11 percent impairment of each upper
extremity, for which he received schedule awards.
FACTUAL HISTORY
On February 22, 1993 appellant, a 28-year-old correctional officer, sustained an injury
while training in the performance of duty: “While lifting 225 pounds on a bench press, I felt
1

5 U.S.C. § 8101 et seq.

something give way in my upper back and immediately was in pain.” He underwent multiple
surgeries. OWCP accepted appellant’s claim for thoracic sprain, cervical strain, closed
dislocation of C6, an open fracture of the cervical vertebra without spinal cord injury, limb pain,
brachial neuritis or radiculitis not otherwise specified and postlaminectomy syndrome of the
cervical region. In 2002 appellant received a schedule award for four percent impairment of
each upper extremity.
In 2010 appellant filed a claim for an increased permanent impairment. Dr. John W.
Ellis, a Board-certified family physician, evaluated appellant and diagnosed, among other things,
bilateral C6-8 spinal nerve root impairment. He estimated a 41 percent impairment of each
upper extremity using ratings for brachial plexus injury.2 OWCP’s medical adviser observed that
Dr. Ellis found weakness of the upper extremities, shoulders, elbows and wrists, but appellant’s
attending physician reported a 5/5 motor examination (no weakness) throughout both upper
extremities. The medical adviser recommended a second opinion examination for an accurate
assessment of motor function.
OWCP referred appellant to Dr. M. Shawn Smith, Board-certified in physical medicine
and rehabilitation, who reviewed appellant’s medical records and related his history of injury and
medical treatment. Current complaints included some decreased grip strength bilaterally, some
weakness in his biceps and some numbness in his hands. Dr. Smith noted that all records
indicated persistent paresthesias bilaterally but were mixed on the issue of muscle strength.
Findings on physical examination included slight weakness in the biceps 4+/5 bilaterally, “but it
is very subtle.” There was also decreased grip strength bilaterally. Dr. Smith further found
decreased light touch and two-point discrimination in the median distribution bilaterally and, on
the right, in some of the ulnar distribution as well. He diagnosed C6-7 disc herniation with
bilateral radiculopathy and subsequent C5-7 fusion with previous pseudoarthrosis with
permanent upper extremity dysesthesias and some persistent weakness.
Dr. Smith rated appellant’s upper extremity impairment using the tables and procedures
developed by the American Medical Association for rating impairment due to spinal nerve
injury. Based on appellant’s history, examination and previous electrodiagnostic findings, he
determined that appellant’s bilateral impairment was due to radiculopathy in the C6 nerve
distribution. The default impairment value for a mild sensory deficit of the C6 nerve root was
one percent. As appellant’s functional history showed a severe problem and imaging studies
showed moderate pathology, Dr. Smith adjusted the default impairment value to two percent,
which was the maximum impairment rating possible for a mild sensory deficit of the C6 nerve
root. Likewise, he increased the default impairment value for motor deficit to nine percent, the
maximum impairment rating possible. Combining the sensory and motor impairments,
Dr. Smith concluded that appellant had an 11 percent impairment of each upper extremity.
In a decision dated December 2, 2010, OWCP issue a schedule award for an additional
seven percent impairment of each upper extremity, less he had already received for four percent
on each side.

2

Dr. Ellis did not explain how he used to the table to obtain impairments of C6, C7 or C8.

2

On appeal, appellant contends that Dr. Smith did not read the records given to him
properly: the injury was not only to the C6 vertebra but resulted in surgery with plates and
screws to C5-7. He offered several corrections to Dr. Smith’s report: he was injured training,
not playing; he worked in El Reno, not Weatherford; and “elect” bone graft should be “iliac”
bone graft. Appellant stated that an electromyogram (EMG) is not normal if it suggests
compression of the median nerves, and he adds that subtracting 4 percent for a previous award
would leave him with a total rating of 18 percent, not the 14 percent OWCP decided.
LEGAL PRECEDENT
FECA authorizes the payment of schedule awards for the loss or loss of use of specified
members, organs or functions of the body.3 Such loss or loss of use is known as permanent
impairment. OWCP evaluates the degree of permanent impairment according to the standards
set forth in the specified edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment.4
No schedule award is payable for a member, function or organ of the body not specified
in FECA or in the regulations.5 Neither FECA nor the implementing regulations authorize the
payment of a schedule award for the permanent loss of use of the back or spine.6 A claimant is
not entitled to such an award.7
ANALYSIS
The sixth edition of the A.M.A., Guides do not provide a separate mechanism for rating
spinal nerve injury as extremity impairment; radiculopathy was reflected in the spinal rating
process, which FECA does not recognize. Impairment to the upper extremities caused by a
spinal injury should be rated, therefore, consistent with the article “Rating Spinal Nerve
Extremity Impairment Using the Sixth Edition” in the July/August 2009 edition of The Guides
Newsletter published by the American Medical Association and adopted by OWCP.8
Dr. Ellis, the family physician who rated 41 percent impairment of each upper extremity,
diagnosed spinal nerve root impairment but did not rate the impairment under the tables and
procedures set out in the American Medical Association’s newsletter on spinal nerve injury.

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404. For impairment ratings calculated on and after May 1, 2009, OWCP should advise any
physician evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6.a (January 2010).
5

William Edwin Muir, 27 ECAB 579 (1976).

6

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

7

E.g., Timothy J. McGuire, 34 ECAB 189 (1982).

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1.5
(January 2010).

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Instead, he used a table in the sixth edition that was intended for brachial plexus injury. For this
reason, his estimate of appellant’s impairment is of diminished weight.
Dr. Smith, the second opinion physiatrist, applied the proper table and procedures. Based
on appellant’s history, examination and previous electrodiagnostic findings, he identified
radiculopathy in the C6 nerve root distribution, and he assessed the deficits as mild. He then
properly adjusted the default impairment values for the effect on appellant’s functional capacity
and the extent of pathology shown on clinical studies. Dr. Smith gave appellant the highest
impairment rating possible for mild sensory deficit of the C6 nerve root and the highest
impairment rating possible for any kind of motor deficit of the C6 nerve root. These ratings, 2
percent and 9 percent respectively, combined for an 11 percent impairment of each upper
extremity. As appellant had already received schedule awards for a four percent impairment of
each upper extremity, OWCP properly awarded compensation for an additional seven percent
impairment on each side.
The Board finds that appellant has no more than an 11 percent impairment of each upper
extremity resulting from sensory and motor deficits of the C6 nerve root. Dr. Smith properly
evaluated the impairment, and OWCP properly compensated appellant for his increased
impairment. The Board will therefore affirm the December 2, 2010 schedule award.
Appellant expressed concern that Dr. Smith seemed to focus only on the C6 vertebra,
while the record shows surgery with plates and screws from C5 through C7. He underwent
surgery involving multiple cervical vertebrae, but that does not mean there was an injured nerve
root at each of those levels contributing to the impairment of his upper extremities. The source
of any radiculopathy resulting from appellant’s multiple surgeries must be judged from his
history, his physical examination and the results of clinical studies. Dr. Smith identified the C6
nerve root as the cause of the sensory and motor deficits in appellant’s upper extremities. This is
the first step in rating impairment for a spinal injury: identifying the involved nerve, not the
involved vertebrae.
The several corrections appellant offered are not material to the impairment rating.
Appellant was indeed training, he did work in El Reno, and the bone graft was taken from his
iliac, not “elect” (a probable transcription error). Also, an EMG/nerve conduction study
measures the electrical activity of muscles at rest and during contraction. The nerve conductions
study measures how well and how fast the nerves can send electrical signals. So it is entirely
possible, as Dr. Smith reported, that needle EMG examination can be within normal limits while
nerve conduction studies show evidence suggestive of compression neuropathies.9
When adjusting for the prior schedule award, OWCP must subtract four percent from
Dr. Smith’s rating of the right upper extremity and four percent from his rating of the left. A
schedule award is granted for permanent impairment of members identified under section 8107,
or each arm in this case. OWCP correctly subtracted four percent from the impairment to each
upper extremity (11 minus 4 equals 7). It properly awarded compensation based on each upper
extremity impairment.
9

This is exactly what Dr. Michael A. Tribbey found in his September 6, 2005 EMG and nerve conduction study.

4

Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than an 11 percent impairment of each upper
extremity, for which he received schedule awards.
ORDER
IT IS HEREBY ORDERED THAT the December 2, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 14, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.W., Appellant
and
U.S. POSTAL SERVICE, MAIN OFFICE,
Newark, NJ, Employer
__________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 09-704
Issued: October 26, 2009

Case Submitted on the Record

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

JURISDICTION
On January 16, 2009 appellant filed a timely appeal of January 16 and August 27, 2008
decisions of the Office of Workers’ Compensation Programs adjudicating her schedule award
claim. Pursuant to 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 10 percent left upper extremity impairment.
FACTUAL HISTORY
This is the second appeal in this case.1 By decision dated September 7, 2007, the Board
set aside a September 21, 2006 Office decision and remanded the case for further development of
the medical evidence. The Board found a conflict in the medical opinion evidence between
Dr. David Weiss, an attending physician, and Dr. Harry L. Collins, an Office medical adviser,
1

See Docket No. 07-1002 (issued September 7, 2007).

and remanded the case for referral to an impartial medical specialist. The facts and the law of
the case contained in the Board’s prior decision are incorporated herein by reference.
Appellant sustained bilateral carpal tunnel syndrome in the performance of duty. On
February 10, 1995 she underwent a right carpal tunnel release. Appellant did not undergo
surgery on her left hand. She submitted a claim for a schedule award. On October 18, 2001 the
Office granted appellant a schedule award for 31.20 weeks from March 5 to October 9, 2001
based on a 10 percent impairment of her left upper extremity.2
By letter dated October 3, 2007, the Office referred appellant, together with a statement
of accepted facts, a list of questions, guidelines for determining impairment due to carpal tunnel
syndrome and the entire case file, to Dr. Donald Getz, a Board-certified orthopedic surgeon, to
resolve the conflict in medical opinion evidence between Dr. Weiss and Dr. Collins.3 The
statement of accepted facts noted that bilateral carpal tunnel syndrome was an accepted condition
and that the Office previously granted appellant a schedule award for 20 percent right arm
impairment and 10 percent left arm impairment. The Office asked Dr. Getz to determine
whether she had left arm impairment due to factors of her federal employment. If he found
work-related impairment, Dr. Getz was asked to provide a detailed, rationalized report, based on
the American Medical Association, Guides to the Evaluation of Permanent Impairment4
(A.M.A., Guides) and a completed impairment evaluation form.
In a report dated October 24, 2007, Dr. Getz reviewed the medical history and provided
findings on physical examination. He indicated that previous electrodiagnostic studies were
normal.5 Dr. Getz noted that the Office did not provide any reports from Dr. Collins. He stated
that appellant had good muscle bulk in her left upper extremity with good range of motion at the
elbow. There was no thenar or hypothenar atrophy of the left hand. There was full range of
motion of all 10 fingers. Tinel’s sign was positive. Grip strength was 60 pounds on the right and
20 pounds on the left measured with a Jamar dynamometer. Two-point discrimination testing
results for the median nerve varied widely in all 10 fingers with detection sometimes at less than
5 millimeters (mm) and other times more than 15 mm in the same fingers. The average of the
last five tests was 5 mm two-point discrimination on the fourth and fifth fingers and 15 mm on
the index and long fingers and one-half of the fourth finger. Two-point discrimination testing of
the proximal phalanges on the dorsal side of the hand innervated by the uninvolved radial nerve
was either undetectable or over two centimeters (cm). Dr. Getz stated that the results from the
median and radial nerve two-point discrimination testing invalidated the sensibility testing. He
found no objective evidence of left carpal tunnel syndrome. Dr. Getz opined that appellant had

2

Appellant received a schedule award based on 20 percent right upper extremity on July 17, 1997.

3

Of record is an appointment schedule form with a list of 18 physicians in the Physicians Directory System
(PDS) who were contacted by the Office and the reason each physician was bypassed before the Office contacted
Dr. Getz. On an unspecified date appellant moved to North Carolina.
4

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

5

The record reflects that electrodiagnostic tests were last performed on appellant’s left upper extremity on
June 28, 2000. Dr. Getz indicated that he reviewed an electrodiagnostic study dated December 16, 1994.

2

no ratable left upper extremity causally related to her employment based on normal
electrodiagnostic testing and the invalid sensitivity testing.
By letter dated November 16, 2007, the Office provided Dr. Getz with the May 15, 1997
impairment rating of Dr. Weiss and the January 19, 2001 notes of Dr. Collins. It asked whether
Dr. Getz’ impairment rating remained the same after he reviewed the reports of Dr. Weiss and
Dr. Collins. The Office asked Dr. Getz to provide a supplemental report with a rationalized
opinion as to whether appellant had any work-related left upper extremity impairment. It
enclosed a copy of Form CA-1303 used for calculating impairment due to carpal tunnel
syndrome. In response, Dr. Getz provided a completed CA-1303 form in which he indicated that
appellant reached maximum medical improvement approximately June 14, 1999 and that she had
no left upper extremity impairment due to decreased strength or sensory deficit or pain based on
his physical findings and the fifth edition of the A.M.A., Guides.
By decision dated January 16, 2008, the Office denied appellant’s claim for more than
10 percent left upper extremity impairment.
On January 23, 2008 appellant requested a hearing before an Office hearing
representative that was held on June 25, 2008. By decision dated August 27, 2008, the Office
affirmed the January 16, 2008 decision.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act6 and its
implementing regulations7 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, the Act 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.8
Section 8123(a) of the Act provides 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.”9 Where a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id.

9

5 U.S.C. § 8123(a); see also Raymond A. Fondots, 53 ECAB 637 (2002); Rita Lusignan (Henry Lusignan),
45 ECAB 207 (1993).

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such specialist, if sufficiently well rationalized and based on a proper factual and medical
background, must be given special weight.10
Board case precedent provides that, when the Office obtains an opinion from an impartial
medical specialist for the purpose of resolving a conflict in the medical evidence and the
specialist’s opinion requires clarification or elaboration, the Office must secure a supplemental
report from the specialist to correct the deficiency in his original report. Only when the impartial
specialist is unable or unwilling to clarify or elaborate on his original report, or if his
supplemental report is incomplete, vague, speculative or lacking in rationale, should the Office
refer the claimant to a second impairment specialist.11
ANALYSIS
The Board finds that this case is not in posture for a decision. Further development of the
medical evidence is necessary to determine whether appellant has more than 10 percent left
upper extremity impairment.
Dr. Getz provided findings on physical examination and indicated that previous
electrodiagnostic studies were normal. He stated that appellant had good muscle bulk in her left
upper extremity with good range of motion at the elbow, no thenar or hypothenar atrophy of the
left hand and full range of motion of all 10 fingers. Dr. Getz failed to provide range of motion
measurements for the fingers, hand or elbow based on the A.M.A., Guides procedures at pages
450 to 474 of the (5th ed.). He found that Tinel’s sign was positive but this finding is inconsistent
with his statement that appellant had no clinical evidence of left carpal tunnel syndrome.
Two-point discrimination testing results for the median nerve varied but the average was 5 mm
discrimination on the fourth and fifth fingers and 15 mm on the index and long fingers and
one-half of the fourth finger. Two-point discrimination testing of the proximal phalanges on the
dorsal side of the hand innervated by the radial nerve was either undetectable or over two cm.
Dr. Getz opined that the results from the median and radial nerve two-point discrimination
testing invalidated the sensibility testing. However, he did not explain why he questioned the
validity of the two-point discrimination testing but did not question the validity of the Tinel’s
test. Dr. Getz opined that appellant had no ratable left upper extremity impairment causally
related to her employment based on normal electrodiagnostic testing and the invalid sensitivity
testing. As noted, the record shows that the last electrodiagnostic testing of appellant’s left upper
extremity was performed on June 28, 2000, more than five years before Dr. Getz’s examination
of appellant’s left upper extremity. The electrodiagnostic study that Dr. Getz reviewed was not
the 2000 study but an even older December 16, 1994 study, 13 years before his evaluation of
appellant’s impairment. He did not address the issue of whether it was necessary to obtain a
current electrodiagnostic study. Such explanation is particularly important in light of the fact
that appellant did not undergo a left carpal tunnel surgical release. In his supplemental report,
Dr. Getz provided a completed CA-1303 form in which he indicated that appellant had no left
upper extremity impairment due to decreased motor strength or sensory deficit or pain, based on
his physical findings and the fifth edition of the A.M.A., Guides. However, he did not provide
10

See Roger Dingess, 47 ECAB 123 (1995); Glenn C. Chasteen, 42 ECAB 493 (1991).

11

See Nancy Keenan, 56 ECAB 687 (2005).

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all of the information requested by the Office. It asked Dr. Getz to review the impairment
ratings of Dr. Weiss and Dr. Collins and indicate whether his impairment rating remained the
same. The Office asked Dr. Getz to provide a supplemental report with a rationalized opinion as
to whether appellant had any work-related left upper extremity impairment. Dr. Getz did not
provide a supplemental report with this information. When an impartial specialist is unable or
unwilling to clarify or elaborate on his original report or if his supplemental report is incomplete,
vague, speculative or lacking in rationale, the Office should refer the claimant to a second
impartial medical specialist. The Board finds that the impairment evaluation of Dr. Getz is not
based on a complete and accurate factual and medical background, lacks specific measurements
on physical examination regarding range of motion, does not explain the inconsistency between a
positive Tinel’s sign and his opinion that appellant has no sensory deficit, does not explain why a
13-year-old electrodiagnostic study is adequate to evaluate impairment due to carpal tunnel
syndrome in a case where there was no surgical release of the median nerve and fails to provide
sufficient medical rationale explaining his opinion that appellant has no work-related left upper
extremity impairment. Due to these deficiencies, the impairment rating of Dr. Getz is not
entitled to special weight and is not sufficient to resolve the conflict in the medical opinion
evidence. On remand, the Office should refer appellant to a new impartial medical specialist for
an impairment rating of her left upper extremity based on Office procedures and the A.M.A.,
Guides. After such further development as the Office deems necessary, it should issue an
appropriate decision.
The Board also notes that the Office failed to follow its procedures that require referral of
the medical evidence to an Office medical adviser in cases where an impartial medical specialist
examination was arranged to resolve a conflict in a schedule award case.12 The Office did not
refer the impairment rating of Dr. Getz to an impartial medical specialist as required.
On appeal, appellant asserts that the case record does not reflect that Dr. Getz was
properly selected from the PDS. The Federal (FECA) Procedure Manual (the procedure manual)
provides that the selection of impartial medical specialists is made through a strict rotational
system using appropriate medical directories. The procedure manual provides that the PDS
should be used for this purpose wherever possible.13 The PDS is a set of stand-alone software
programs designed to support the scheduling of second opinion and referee examinations.14 The
PDS database of physicians is obtained from the American Board of Medical Specialties
(ABMS) which contains the names of physicians who are Board-certified in certain specialties.
In this case, the record contains a list of 18 physicians contacted by the Office using the PDS,
along with the dates they were contacted and the reason why each physician was bypassed before
Dr. Getz was selected. The case record documents that the Office properly selected Dr. Getz as
the impartial medical specialist in rotation from the PDS. There is no indication in the record,

12

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.5
(March 2005).
13

Federal (FECA) Procedure Manual, supra note 12 at Chapter 3.500.4b (March 2005).

14

Federal (FECA) Procedure Manual, supra note 12 at Chapter 3.500.7 (March 2005).

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nor has appellant provided evidence, that the Office did not follow its procedures in selecting
Dr. Getz as the impartial medical specialist from the PDS. Therefore, this argument is without
merit.
CONCLUSION
The Board finds that this case is not in posture for a decision. On remand, the Office
should refer appellant to a new Board-certified impartial medical specialist for a left upper
extremity impairment rating.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 27 and January 16, 2008 are set aside and the case is
remanded for further development consistent with this opinion.
Issued: October 26, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
Kansas City, MO, Employer
__________________________________________

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

Docket No. 07-2097
Issued: January 29, 2008

Case Submitted on the Record

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

JURISDICTION
On August 17, 2007 appellant filed an appeal from a merit decision by the Office of
Workers’ Compensation Programs dated July 26, 2007, finding 10 percent impairment of her
right upper extremity. The Board has jurisdiction over the merits of this case pursuant to
20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether appellant has more than a 10 percent impairment of her right upper
extremity, for which she received a schedule award.
FACTUAL HISTORY
On June 4, 1993 appellant, then a 33-year-old senior claims examiner, sustained left and
right carpal tunnel syndrome and tendinitis as a result of repetitive typing, keying and grasping
movements required by her federal employment. The Office accepted her claim for right wrist

carpal tunnel syndrome. On November 29, 1994, the Office issued a schedule award for a 10
percent impairment of appellant’s right upper extremity.
By letter dated November 9, 2006, appellant requested an increase in her schedule award.
She submitted an October 18, 2006 medical report from Dr. Pedro A. Murati, a Board-certified
physiatrist, who diagnosed bilateral carpal tunnel syndrome, low back pain secondary to
radiculopathy and left S1 joint dysfunction. Dr. Murati noted that appellant’s diagnoses resulted
from a 1990 work injury, with subsequent injury to her low back in 2003. He noted that
appellant reached maximum medical improvement as of September 9, 2006. Dr. Murati utilized
the American Medical Association, Guides to the Evaluation of Permanent Impairment,
(A.M.A., Guides) (5th ed. 2001) to determine that appellant had a 25 percent impairment of the
left upper extremity, 12 percent impairment of the right lower extremity and 13 percent of the
left lower extremity. He stated:
“According to the [A.M.A., Guides], for the right carpal tunnel syndrome
producing weakness in the abductors of the thumb using [T]ables 16-15 and 16-11
she receives [three] [percent] right upper extremity impairment. For the sensory
loss and pain in the right upper extremity as a result of the carpal tunnel syndrome
using [T]ables 16-5 and 16-10 she obtains 23 [percent] right upper extremity
impairment. These combine to 25 [percent] right upper extremity impairment.”
On April 2, 2007 the Office referred the case record to an Office medical adviser, for an
impairment rating of the right upper extremity. The Office also asked the Office medical adviser
to determine whether the date of maximum medical improvement should be changed from the
date on which the November 29, 1994 schedule award was based. It also asked that he address
the issue of impairment to appellant’s left upper extremity and impairment of the lower
extremities. The Office medical adviser responded on April 6, 2007 that it was necessary to
obtain an updated electromyogram (EMG) and nerve conduction studies (NCS). Once these
results were available, an appropriate impairment rating could be made based on the A.M.A.,
Guides.
By letter dated May 3, 2007, the Office requested that appellant have an EMG and NCS
conducted on her left and right upper extremities. These tests were conducted on May 18, 2007,
by Dr. Srinivas Nalamachu, a physiatrist, who concluded that there was evidence of mild carpal
tunnel syndrome on the left side based on sensory findings but no evidence of cubital tunnel
syndrome on either side.
On June 6, 2007 the Office medical adviser reviewed the evidence and noted that
appellant’s claim had been accepted for right carpal tunnel syndrome. He saw no evidence to
establish that her other diagnoses were related to her employment. The Office medical adviser
listed the date of maximum medical improvement as May 18, 2007. With regard to the
impairment to her right upper extremity, the Office medical adviser stated:
“The next question asks whether or not the medical evidence supports that the
claimant has sustained an increase in the permanent partial impairment to the right
upper extremity above and beyond the 10 percent which was awarded on
November 29, 1994. No the medical evidence does not support an increase. In

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fact, the EMG and [NCS] performed on May 18, 2007 are negative for the right
carpal tunnel syndrome. Based on the [fifth] [e]dition of the [A.M.A., Guides] a
normal EMG and [NCS] of the right upper extremity results in a 0 percent
impairment rating. For the specific reference please see the [fifth] [e]dition of the
[A.M.A., Guides], the section on [c]arpal [t]unnel [s]yndrome.”
By decision dated July 26, 2007, the Office found that the Office medical adviser
properly applied the A.M.A., Guides and that there was no basis to increase the impairment to
appellant’s right upper extremity. He noted that, as appellant’s claim had not been accepted for
an employment-related condition in her left upper extremity, it was ineligible for a schedule
award at this time.1
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.2 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice under the law, good administrative practice requires the use of uniform
standards applicable to all claimants. The implementing regulations have adopted the A.M.A.,
Guides, as the appropriate standard for evaluating schedule losses.3 Effective February 1, 2001,
schedule awards are determined in accordance with the A.M.A., Guides (5th ed. 2001).4
Section 8123(a) of the Act provides that, if there is a disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third person who shall make an examination.5 In situations where there are
opposing medical reports of virtually equal weight and rationale and the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.6

1

The Board notes that the Office made an error in its decision when discussing the medical report of Dr. Murati.
In its decision, the Office noted that he found that appellant had a 12 percent impairment of her right upper
extremity and a 13 percent impairment of her left upper extremity. In fact, Dr. Murati found that appellant had a
25 percent impairment to each upper extremity.
2

For a total, or 100 percent loss of use of the arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C.
§ 8107(c)(1) (2000).
3

20 C.F.R. § 10.404.

4

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003).

5

See 5 U.S.C. § 8123(a); Roger W. Griffith, 51 ECAB 491 (2000).

6

Rose V. Ford, 55 ECAB 449 (2004); Solomon Polen, 51 ECAB 341 (2000).

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ANALYSIS
The fifth edition of the A.M.A., Guides, regarding impairment due to carpal tunnel
syndrome, provides:
“If, after an optimal recovery time following surgical decompression, an
individual continues to complain of pain, paresthesias and/or difficulties in
performing certain activities, three possible scenarios can be present-(1) Positive clinical findings of median nerve dysfunction and electrical
conduction delay(s): the impairment due to residual [carpal tunnel
syndrome] is rated according to the sensory and/or motor deficits as
described [in Tables 16-10a and 16-11a].
(2) Normal sensibility and opposition strength with abnormal sensory
and/or motor latencies or abnormal [EMG] testing of the thenar muscles:
a residual [carpal tunnel syndrome] is still present and an impairment
rating not to exceed five percent of the upper extremity may be justified.
(3) Normal sensibility (two point discrimination and Semmes-Weinstein
monofilament testing) opposition strength and nerve conduction studies:
there is no objective basis for an impairment rating.7
The Board has found that the fifth edition of the A.M.A., Guides provides that
impairment for carpal tunnel syndrome be rated on motor and sensory deficits only.8
In the instant case, Dr. Murati found that the first scenario applied to appellant’s
condition. He found that appellant had sensory and motor deficits in her right upper extremity
causally related to her accepted carpal tunnel syndrome. Dr. Murati found a 25 percent
impairment based on a 3 percent right upper extremity impairment due to right carpal tunnel
syndrome producing weakness in the abductors of her thumb using Tables 16-15 and 16-11 and a
23 percent impairment based on Tables 16-5 and 16-10 for sensory and loss and pain in her right
upper extremity. However, the Office medical adviser utilized the third scenario and determined
that based on the normal EMG and NCS of the right upper extremity, appellant had a zero
percent impairment rating.
Both Dr. Murati, and the Office medical adviser used the A.M.A., Guides in reaching
their conclusions. However, these opinions conflict as to the ratings provided and the application
of the proper criteria under the A.M.A., Guides to be utilized in determining appellant’s
impairment to her right upper extremity. Accordingly, the Board finds that there is a conflict in
medical evidence requiring further development of the medical evidence.9

7

A.M.A., Guides 495.

8

Kimberly M. Held, 56 ECAB 670 ( 2005).

9

Id.

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The case will be remanded to the Office to refer appellant to an appropriate impartial
medical specialist for a determination with regard to the extent of impairment to her right upper
extremity. After such development as the Office deems necessary, an appropriate decision
should be issued regarding the extent of appellant’s impairment to her right upper extremity.
CONCLUSION
The Board finds that this case is not in posture for decision due to a conflict in the
medical evidence.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 26, 2007 is set aside and the case is remanded for further
action consistent with this decision.10
Issued: January 29, 2008
Washington, DC

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

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

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

10

Appellant contends on appeal that the Office medical adviser failed to answer all questions set forth by the
Office, including questions regarding her impairment to her left upper extremity or her lower extremities. The only
condition accepted by the Office was right wrist carpal tunnel syndrome. These issues are not before the Board in
the present appeal. See 20 C.F.R. § 501.2(c).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.D., Appellant
and
DEPARTMENT OF STATE, FOREIGN
SERVICE, Washington, DC, Employer
__________________________________________

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

Docket No. 12-968
Issued: November 2, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 28, 2012 appellant filed a timely appeal from October 12, 2011 and
January 27, 2012 merit decisions of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly denied authorization and reimbursement for
chiropractic treatment.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted evidence after the final decision by OWCP. The Board’s jurisdiction is limited to
reviewing the evidence that was before OWCP at the time of its decision. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On December 19, 2005 appellant, then a 62-year-old secretary, sustained a traumatic
injury after she slipped on a wet floor. She returned to work on January 3, 2006 and
subsequently retired. On June 19, 2006 OWCP accepted the claim for right ankle sprain.
In medical reports dated June 16 to July 7, 2009, Dr. Keith K. Ratcliff, a treating
chiropractor, reported that appellant sustained a work-related injury on December 19, 2005 and
had chronic problems with her lower extremities, back, neck and right upper extremity. He
noted that he reviewed x-rays of her neck and low back, as well as a magnetic resonance imaging
(MRI) scan of the cervical spine dated April 22, 2009. Dr. Ratcliff stated that radiographic
findings of the lumbar spine showed discopathy at L1-2 through L5-S1, intervertebral foraminal
narrowing at L5-S1 and facet joint imbrication at L1-2 through L5-S1. He diagnosed right ankle
pain secondary to the December 19, 2005 injury. Dr. Ratcliff further diagnosed right lower
extremity pain, right low back pain, right mid back pain and neck pain secondary to joint and
soft/hard tissue dysfunction as a result of the December 19, 2005 employment incident. He
recommended chiropractic manipulative treatment to the restricted spinal and extraspinal joints,
myofacial release, hard tissue release and requested authorization for treatment by OWCP.
In a December 28, 2009 MRI scan of the lumbar spine, Dr. Robert H. Santee, a Boardcertified diagnostic radiologist, reported that there were spondylitic changes at L3-4 and L4-5
with some canal narrowing. The MRI scan also revealed a 3.57 millimeter (mm) anterior
subluxation of L3 on L4, grade 1 spondyloisthesis of L3 on L4 and central disc protrusion and
herniation at L4-5.
In medical reports dated September 16, 2009 to April 15, 2010, Dr. Donald A. Lakatosh,
Board-certified in physical medicine and rehabilitation, reported that appellant sought treatment
for neck, shoulder and back pain. In a December 30, 2009 report, he reported that a
December 28, 2009 MRI scan showed central canal protrusion and herniation at L4-5 and grade
1 spondylosthesis at L3-4. Dr. Lakatosh further stated that there was severe narrowing noted at
the L3-4 disc level and a 3.57 mm anterior subluxation at L3-4. Plain x-ray confirmed the
findings of advanced degenerative disc and facet disease at L3-4 with resultant grade 1
spondylolisthesis. Dr. Lakatosh opined that appellant’s condition could be a result of her
December 19, 2005 work-related injury and that her symptoms appeared to be causally related to
her fall.
By decision dated May 17, 2010, OWCP expanded the claim to accept lumbar herniated
disc at the L4-5 level.
By letter dated May 17, 2011, OWCP informed appellant that her chiropractor had
submitted a medical report, which did not provide a diagnosis of subluxation of the spine. It
informed her of circumstances by which chiropractors are reimbursed for their services and
requested she submit additional medical evidence in support of her claim.
In a May 25, 2010 medical report, Dr. Lakatosh diagnosed appellant with right L5
radiculopathy and recommended that she be evaluated by an orthopedic spine surgeon. He
further stated that he had little to offer with regard to physical medicine and rehabilitation.

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In medical reports dated July 6 to September 1, 2010, Dr. David W. Leaf, a treating
chiropractor, reported that appellant was evaluated and treated for low back pain located in the
lumbar spine. He reviewed x-rays provided by Dr. Ratcliff and repeated his previously stated
radiographic findings. Upon physical examination, Dr. Leaf opined that appellant’s low back
injury was a result of the December 19, 2005 employment incident and that her right lower
extremity, low back pain, right mid upper back pain and neck pain were a result of her fall. He
recommended manual manipulation, physiotherapy and myofacial release as treatment. In
follow-up visits, Dr. Leaf treated appellant with adjustment to the upper lumbar spine and lower
lumbar region to correct joint dysfunction of the vertebral segments. He requested OWCP
authorize treatment for chiropractic services.
By letter dated May 22, 2011, appellant stated that her chiropractor did not take x-rays of
her spine because Dr. Lakatosh had already done so and provided those findings in his medical
reports. She further stated that Dr. Lakatosh provided a diagnosis of anterior subluxation at the
L3-4 level. Appellant submitted physical therapy notes dated September 15 to October 1, 2010
documenting treatment for her low back, hip, buttocks, lateral thigh and calf pain.
In a September 21, 2011 medical note, Dr. Leaf stated that an MRI scan performed on
December 28, 2009 revealed an anterior subluxation at L3-4.
By decision dated October 12, 2011, OWCP found that appellant was not entitled to
reimbursement for chiropractic treatment because the evidence did not establish that she received
chiropractic treatment for subluxation of the spine diagnosed by her chiropractor based upon
x-ray evidence or that the treatment was medically necessary for the accepted employment
injury.
On November 7, 2011 appellant requested review of the written record before the Branch
of Hearings and Review.
In support of her claim, appellant submitted a December 28, 2009 diagnostic report from
Dr. Santee reviewing an x-ray of the lumbar spine. Dr. Santee noted an anterior subluxation of
L3 on L4 and diagnosed advanced degenerative disc and facet changes at L3-4 with resultant
grade 1 spondylolisthesis of L3 on L4.
By decision dated January 27, 2012, OWCP affirmed the October 12, 2011 decision
finding that the medical evidence was insufficient to establish coverage for chiropractic
treatment.
LEGAL PRECEDENT
Section 8103 of FECA3 provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances and supplies prescribed or
recommended by a qualified physician, which the Secretary of Labor considers likely to cure,
give relief, reduce the degree of the periods of any disability or aid in lessening the amount of

3

5 U.S.C. § 8103.

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any monthly compensation.4 These services, appliances and supplies shall be furnished by or on
the order of the United States medical officers and hospital or at the employee’s option by or on
the order of physicians and hospitals designated or approved by the Secretary.5 The employee
may be furnished necessary and reasonable transportation and expenses incidental to the securing
of such services, appliances and supplies.6 In interpreting this section 8103, the Board has
recognized that OWCP has broad discretion in approving services provided under FECA. The
only limitation on OWCP’s authority is that of reasonableness.7
To be entitled to reimbursement of medical expenses, a claimant has the burden of
establishing that the expenditures were incurred for treatment of the effects of an employmentrelated injury or condition.8 Proof of causal relationship in a case such as this must include
supporting rationalized medical evidence.9
In assessing the probative value of chiropractic evidence, the initial question is whether
the chiropractor is considered a physician under section 8101(2) of FECA. A chiropractor is not
considered a physician under FECA unless their reimbursable services are limited to treatment
consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray
to exist and subject to regulation by the Secretary.10 Without diagnosing a spinal subluxation
from x-ray, a chiropractor is not a physician under FECA.11
OWCP’s implementing regulations provide exceptions to the general rule that services
rendered by a chiropractor are not payable when they do not consist of manual manipulation of
the spine to correct a subluxation as demonstrated by x-ray to exist. These exceptions are for
physical therapy rendered by a chiropractor under the direction of an authorized physician and
for chiropractic treatment authorized without limitations by OWCP or the employing
establishment.12
ANALYSIS
The Board finds that OWCP properly denied authorization and reimbursement for
chiropractic care.

4

Id.

5

Daniel J. Perea, 42 ECAB 214 (1990).

6

See Debra S. King, 44 ECAB 203 (1992); Bertha L. Arnold, 38 ECAB 282 (1986).

7

D.C., Docket No. 06-2161 (issued July 13, 2007).

8

T.F., Docket No. 06-1186 (issued October 19, 2006).

9

Cathy B. Millin, 51 ECAB 331 (2000).

10

5 U.S.C. § 8102(2); see Mary A. Ceglia, 55 ECAB 626 (2004); Sean O’Connell, 56 ECAB 195 (2004).

11

Id.

12

20 C.F.R. § 10.311(d).

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Appellant sustained an injury on December 19, 2005, which was initially accepted by
OWCP for right ankle sprain. OWCP subsequently expanded her claim on May 17, 2010 to
include lumbar herniated disc at the L4-5 level. Appellant failed to establish that her chiropractic
treatments consisted of manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray to exist which was causally related to the December 19, 2005
employment incident.
In reports dated June 16 to July 7, 2009, Dr. Ratcliff, a treating chiropractor, reported that
appellant sustained a work-related injury on December 19, 2005 and had chronic problems with
her lower extremities, back, neck and right upper extremity. After reviewing an MRI scan of the
cervical spine and x-rays of appellant’s neck and lower back, he stated that radiographic findings
of the lumbar spine showed discopathy and facet joint imbrication at L1-2 through L5-S1 and
intervertebral foraminal narrowing at L5-S1. Dr. Ratcliff diagnosed right ankle pain, right lower
extremity pain, right low back pain, right mid back pain and neck pain secondary to joint and
soft/hard tissue dysfunction as a result of the December 19, 2005 employment incident. He
recommended chiropractic manipulative treatment to the restricted spinal and extraspinal joints,
myofacial release and hard tissue release to the restricted tissues.
The Board notes that services rendered by chiropractors are generally not payable by
OWCP except “to the extent that their reimbursable services are limited to treatment consisting
of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist
and subject to regulation by the Secretary.”13 In the present case, there is no evidence that
appellant’s chiropractor, Dr. Ratcliff, treated appellant for a subluxation of the spine as
demonstrated by x-ray to exist. Dr. Ratcliff, therefore, cannot be considered a “physician”
within the meaning of FECA.14
In medical reports dated July 6 to September 1, 2010, Dr. Leaf, a treating chiropractor,
reported that he had reviewed the x-rays provided by Dr. Ratcliff. Upon physical examination,
he opined that appellant’s injury to her low back was a result of the December 19, 2005
employment incident and that her right lower extremity, low back pain, right mid upper back
pain and neck pain were a result of her fall. Dr. Leaf treated her with adjustment to the upper
lumbar spine and lower lumbar region to correct joint dysfunction of the vertebral segments. In
a September 21, 2011 medical report, he stated that an MRI scan performed on December 28,
2009 revealed an anterior subluxation at L3-4.
In the present case, Dr. Leaf diagnosed an anterior subluxation at L3-4 and based his
diagnosis on a December 28, 2009 MRI scan of the lumbar spine. The Board affirms OWCP’s
finding that he was not a physician pursuant to section 8101(2) of FECA as a chiropractor is only
considered a physician if his diagnosis or subluxation is based on a review of x-rays; there is no
provision in FECA or the regulations for acceptance of a chiropractor’s report as probative

13

See 5 U.S.C. § 8101(2).

14

See Garey Harrison, Docket No. 03-128 (issued May 27, 2003).

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medical evidence where subluxation is diagnosed by MRI scan.15 Under FECA, reimbursable
chiropractic services are limited to treatment to correct a subluxation as demonstrated by x-ray.16
The Board has created exceptions to the general rule that services rendered by a
chiropractor are not payable unless they consist of manual manipulation of the spine to correct a
subluxation as demonstrated by x-ray.17 These exceptions are for physical therapy rendered by a
chiropractor under the direction of an authorized physician18 and for chiropractic treatment
authorized without limitations by OWCP or the employing establishment.19
The Board finds, however, that the evidence in this case fails to establish that the
treatment provided by Dr. Ratcliff or Dr. Leaf was under the direction of Dr. Lakatosh,
Dr. Santee or any other authorized physician. In his medical reports, Dr. Lakatosh recommended
that appellant be evaluated by an orthopedic spine surgeon. Further, his May 25, 2010 medical
report specifically stated that he had little to offer with regard to physical medicine and
rehabilitation. There is no indication of a referral by an authorized physician for physical
therapy or chiropractic treatment as a result of appellant’s accepted December 19, 2005 injury,
which would require OWCP to pay for reasonable and necessary treatment for an employmentrelated condition.20
The record does not establish that chiropractors Leaf or Radcliff are physicians,
authorized to provide chiropractic care, as defined by FECA. The evidence of record also fails to
establish that treatment provided by Dr. Leaf and Dr. Ratcliff was under the direction of an
authorized physician as contemplated by section 8101(2) of FECA, for a condition causally
related to the accepted injury. Thus, chiropractic services are not reimbursable.21
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that OWCP properly denied authorization of chiropractic services.

15

Jay K. Tomokiyo, 51 ECAB 361 (2000).

16

Susan P. Pastorino, Docket No. 00-562 (issued May 16, 2001).

17

Edward Schoening, 41 ECAB 977 (1990).

18

Eleanor B. Loomis, 37 ECAB 792 (1986).

19

Beverly A. Scott, 37 ECAB 838 (1986).

20

David L. Sala, 38 ECAB 419 (1987).

21

Susan P. Pastorino, Docket No. 00-562 (issued May 16, 2001).

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ORDER
IT IS HEREBY ORDERED THAT the January 27, 2012 and October 12, 2011
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 2, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CITIZENSHIP & IMMIGRATION SERVICES,
Irving, TX, Employer
__________________________________________

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

Docket No. 11-1790
Issued: April 2, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On July 28, 2011 appellant filed a timely appeal from a March 2, 2011 nonmerit decision
of the Office of Workers’ Compensation Programs’ (OWCP) denying her request for a
prerecoupment hearing. 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 nonmerit decision. Because
more than 180 days elapsed between the last merit decision of OWCP dated January 13, 2011 to
the filing of this appeal, the Board lacks jurisdiction to review the merits of this claim.2

1
2

5 U.S.C. § 8101 et seq.

For final adverse decisions issued prior to November 19, 2008, a claimant had up to one year to appeal to the
Board. See 20 C.F.R. § 501.3(d)(2). For final OWCP decisions issued on and after November 19, 2008, a claimant
has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e). 180 days from the January 13, 2011 merit
decision was July 13, 2011. As appellant filed her appeal on July 28, 2011, the Board does not have jurisdiction
over the January 13, 2011 decision.

ISSUE
The issue is whether OWCP properly denied appellant’s request for a prerecoupment
hearing as untimely.
FACTUAL HISTORY
On November 3, 2009 appellant, then a 58-year-old management program assistant,
tripped and fell injuring her left shoulder. OWCP accepted the claim for closed fracture of the
left upper end of humerus. Appellant stopped work on November 3, 2009. OWCP paid
appropriate benefits and eventually placed her on its periodic compensation rolls, where she
received compensation by direct deposit. Appellant returned to light-duty work on March 16,
2010 for three days a week and on a full time basis effective April 22, 2010.
On October 26, 2010 OWCP informed appellant of its preliminary determination that she
received an overpayment of $3,552.11, because she was paid in error for the period March 16 to
April 10, 2010. It noted that appellant’s compensation benefits were terminated effective
March 16, 2010 but she was paid a complete check for the period March 14 to April 10, 2010 in
the amount of $2,528.00. Further, appellant was paid an additional 64 hours of leave without
pay from March 15 to April 7, 2001 in the amount of $1,204.68. It further advised her of its
preliminary determination that she was with fault in the creation of the overpayment as she was
aware or should have reasonably been aware that she was not due compensation benefits for loss
of pay and wage earning at the same time. OWCP requested that appellant complete the
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 based on the written evidence or a prerecoupment hearing.
In response to the preliminary decision, appellant’s sister telephoned OWCP on
November 17, 2010. She indicated that appellant had a stroke and that she was handling
everything for appellant as she could not take care of her personal business. In a later call of the
same date, appellant’s sister indicated that she received the paperwork regarding the
overpayment but because of appellant’s stroke, it would be difficult to pay back at this time. No
further evidence regarding the overpayment was received. The record did not contain evidence
indicating that appellant’s sister was an authorized representative.
By decision dated January 13, 2011, OWCP finalized its determination that appellant
received an overpayment of $3,552.11 during the period March 14 through April 10, 2010 and
that she was with fault in creating the overpayment. It advised her to send in a check for the full
amount of the overpayment or to contact OWCP to make other arrangements for repayment.
On January 24, 2011 appellant’s sister telephoned OWCP. OWCP noted that appellant’s
file contained no release or authorization from her for her sister and as such OWCP could not
communicate with her sister until it received such written authorization.
On February 1, 2011 appellant requested a prerecoupment hearing on the issues of fault
and a possible waiver of the overpayment with OWCP’s branch of Hearings and Review. She

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submitted a statement describing her health and financial issues along with a completed
overpayment recovery questionnaire.
By decision dated March 2, 2011, OWCP denied appellant’s request for a prerecoupment
hearing as untimely.
LEGAL PRECEDENT
OWCP 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.3 The regulations further
provide that a claimant may request a prerecoupment hearing with respect to an overpayment.4
Failure to request the prerecoupment hearing within 30 days shall constitute a waiver of the right
to a hearing.5 The only right to a review of a final overpayment decision is to the Board.6 The
hearing provisions of 5 U.S.C. § 8124(b) do not apply to a final overpayment decision.7
ANALYSIS
OWCP notified appellant of its preliminary determination that she received an
overpayment of compensation in a letter dated October 26, 2010. It informed her that she could
request a telephone conference, a prerecoupment hearing or a final decision based on the written
evidence within 30 days of the date of the letter. Appellant requested a prerecoupment hearing
on February 1, 2011 after OWCP had finalized its overpayment determination on
January 13, 2011. As her request was more than 30 days after OWCP’s October 26, 2010
notification of overpayment, it was untimely. Thus, under the regulations appellant waived her
right to a prerecoupment hearing.8 Further, FECA provides that the hearing provisions of section
8124(b) do not apply to a final overpayment decision.9 Accordingly, OWCP properly denied
appellant’s request for a prerecoupment hearing.
On appeal, appellant argues that her health and financial circumstances surrounding the
overpayment should be taken into consideration as well as her attempts to contact OWCP
through her sister. The Board, however, has no jurisdiction over the merits of the claim.10
3

20 C.F.R. § 10.431.

4

Id. at § 10.432.

5

Id.

6

Id. at § 10.440(b).

7

Id.; see also Philip G. Feland, 48 ECAB 485 (1997).

8

Id.

9

Id. at § 10.440(b); see also Philip G. Feland, supra note 7.

10

See supra note 2.

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CONCLUSION
The Board finds that OWCP properly denied appellant’s request for a prerecoupment
hearing as untimely.
ORDER
IT IS HEREBY ORDERED THAT the March 2, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 2, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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