United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Phoenix, AZ, Employer
__________________________________________

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

Docket No. 18-1076
Issued: April 11, 2019

Case Submitted on the Record

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

JURISDICTION
On May 2, 2018 appellant, through counsel, filed a timely appeal from an April 11, 20182
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the

1

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

The Board notes that on April 12, 2018 the OWCP claims examiner forwarded appellant a copy of the hearing
representative’s decision. The Board finds that the proper decision on appeal is the April 11, 2018 decision of the
hearing representative.

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.4
ISSUE
The issue is whether appellant has met her burden of proof to establish intermittent periods
of disability commencing January 12, 2017, causally related to her accepted employment injury.
FACTUAL HISTORY
On January 12, 2017 appellant, then a 48-year-old city letter carrier, filed an occupational
disease claim (Form CA-2) alleging that repetitive pushing, pulling, and lifting required in the
performance of her federal employment accelerated her nonreparable rotator cuff condition. She
noted that she first became aware of her condition on December 3, 2015 and realized its relation
to her federal employment on January 11, 2017.5 Appellant stopped work on January 11, 2017.
OWCP accepted the claim for right shoulder bicipital tendinitis and impingement syndrome of
right shoulder.
On June 8, 2017 appellant filed a claim for compensation (Form CA-7) for intermittent
disability for the period January 12 through April 17, 2017, which she attributed to her shoulder
injuries.
In a February 15, 2017 duty status report (Form CA-17), a certified physician assistant with
an illegible signature, noted appellant’s restrictions due to her right shoulder chronic rotator cuff
tear.6
Medical reports dated 2015 through 2017 from Dr. Brent Hansen, an osteopath and Boardcertified orthopedic surgeon, were submitted. In a January 24, 2017 progress note, Dr. Hansen
noted that appellant reported difficulty casing mail and carrying letters. He indicated that her
examination was essentially unchanged and that her weakness was consistent with a chronic rotator
cuff pathology. Dr. Hansen diagnosed of chronic retracted rotator cuff tear right shoulder, right

3

5 U.S.C. § 8101 et seq.

4

The Board notes that, following the April 11, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.
5

Medical reports of record from 2009 indicate that appellant had a nonindustrial right shoulder injury approximately
three and a half years prior for which she was diagnosed with impingement syndrome, rotator cuff tear with right
upper extremity acromioclavicular (AC) joint arthrosis, osteoarthritis, and rotator cuff (traumatic) strain/sprain with
tear-massive. Appellant underwent surgery for her rotator cuff tear on May 21, 2009. She returned to full-duty work
without restrictions on August 27, 2009.
6
On April 3, 2017 an unknown physician countersigned the February 15, 2017 Form CA-17, which had provided
restrictions for right shoulder chronic rotator cuff tear.

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shoulder subacromial impingement, right shoulder bicep tendinitis, and right shoulder weakness
and pain. He opined that appellant was temporarily disabled from work until further notice.
In a January 25, 2017 report, Dr. Hansen indicated that appellant had a possibly inoperable,
if not irreparable, rotator cuff tear which significantly impacted her ability to work and perform
daily activities. He explained that the repetitive nature of the pushing, pulling, driving, and
delivering mail in appellant’s work “can and will accelerate or further agitate and deteriorate her
condition.” Dr. Hansen indicated that appellant was able to return to work on January 12, 2017 as
long as her work restrictions were maintained. He diagnosed rotator cuff tear/rupture of the right
shoulder, impingement syndrome of the right shoulder, biceps tendinitis, and pain.
In a January 27, 2017 form, an unknown provider from OrthoArizona provided work
restrictions for appellant’s right shoulder severe chronic rotator cuff tear.
In a February 15, 2017 report, Dr. Hanson noted that appellant had not been allowed to
return to work with her previously described restrictions. He reported that appellant’s examination
was unchanged. Dr. Hanson provided an assessment of right shoulder pain, right shoulder chronic
rotator cuff tear, and right biceps tendinitis. Right shoulder surgery was discussed.
On June 16, 2017 appellant returned to full-time, full-duty work with no restrictions.
In a June 21, 2017 report, Dr. Hansen provided an assessment of right subacromial
impingement, right previous rotator cuff tear and repair, right shoulder partial rotator cuff retear,
and right shoulder bicipital tendinitis. He indicated that appellant had been doing well from her
previous rotator cuff surgery until her December 2015 injury. Dr. Hansen noted that appellant’s
work restrictions were based on initial findings of bicipital problems, impingement, and partial
tearing of the rotator cuff. He indicated that she could work within her current work restrictions.
By development letter dated July 3, 2017, OWCP informed appellant that the evidence
submitted in support of her claim for wage-loss compensation was insufficient to establish
disability for the claimed period due to the accepted right shoulder conditions. It noted that the
condition of right shoulder chronic rotator cuff tear had not been accepted as part of this claim.
OWCP advised appellant of the type of medical evidence needed and afforded her 30 days to
submit additional evidence.
The employing establishment reported that appellant returned to work with restrictions on
July 25, 2017.
By decision dated August 29, 2017, OWCP denied appellant’s claim for intermittent
periods of disability commencing January 12, 2017. It found that the medical evidence submitted
did not support intermittent periods of temporary total disability commencing January 12, 2017
based on the accepted work-related medical conditions.
In a September 6, 2017 letter, appellant, through counsel, requested a telephonic hearing
before an OWCP hearing representative, which was held on February 5, 2018. Appellant testified
that, after she developed her employment-related condition, her physician provided new
restrictions effective January 12, 2017, but no work was available within the new restrictions.

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In a February 27, 2018 statement, the employing establishment noted since appellant had
not yet filed a claim on January 12, 2017 it had considered her request to work with restrictions
light duty (usually an off-the-job injury) and provided work within her restrictions only when
available. After appellant had filed her claim, it provided her with an April 17, 2017 job offer,
which she accepted. The employing establishment advised that, since OWCP had not accepted
the right shoulder chronic rotator cuff tear condition, it had changed appellant’s assignment from
limited duty to light duty. It noted that appellant’s work restrictions had not changed since
January 11, 2017.
In monthly progress reports and duty status reports from August 23, 2017 onwards,
Dr. Hansen continued to diagnose right shoulder pain, subacromial impingement, chronic rotator
cuff tear, and biceps tendinitis. He indicated that appellant’s examination and current work
restrictions were unchanged. In his August 23, 2017 report, Dr. Hansen opined that even though
appellant’s rotator cuff condition was not caused by work, this condition had been aggravated by
her employment duties. In an October 31, 2017 report, Dr. Hansen opined that appellant’s current
position at work should be made permanent. In a November 16, 2017 report, he indicated that
appellant’s chronic shoulder pain had been accelerated and aggravated by her employment injury.
Dr. Hansen also clarified appellant’s restrictions.
On December 8, 2017 appellant filed a claim for compensation (Form CA-7) claiming
disability due to a material change/worsening of her accepted work-related conditions.
In a December 22, 2017 development letter, OWCP noted that appellant had returned to
work on June 20, 2017 in a full-time, full-duty capacity and had a second return to work on July 26,
2017 in a limited-duty capacity. It requested that she provide factual and medical evidence to
substantiate that her disability occurred because of a spontaneous change in her medical condition
which necessitated a work stoppage or that a limited-duty assignment was withdrawn. Appellant
was afforded 30 days to provide the requested information.
In a January 15, 2018 questionnaire, appellant indicated that she did not have a recurrence
of disability based on a change in her medical condition. Rather, she indicated that her limitedduty position was withdrawn. Appellant noted that she worked limited duty from April 17 to
December 28, 2017 and that the employing establishment withdrew that assignment on
December 28, 2017. Copies of an April 17, 2017 job offer was provided along with requests for
or notification of absence.
In a January 11, 2018 report, Dr. Hansen noted that it was his understanding that the
withdrawal of appellant’s April 17, 2017 job offer was administrative. He indicated that
appellant’s right shoulder condition had remained unchanged since her claim was accepted and
that all Form CA-7s submitted had been due to the employing establishment not providing work.
Dr. Hansen further indicated that because of appellant’s preexisting chronic rotator cuff tear, the
impingement syndrome and bicipital tendinitis had been permanently aggravated once the initial
injury occurred. He also opined that the April 17, 2017 job offer should be reinstated and made
permanent as appellant had tolerated that assignment.
Progress notes and duty status reports (Form CA-17) from Dr. Hansen were received along
with additional claims for compensation (Form CA-7) from appellant. In a February 7, 2018

4

report, Dr. Hansen opined that appellant’s underlying cuff tear arthropathy was most likely
aggravated if not caused by her years of work and previous surgeries to her shoulders. In a
March 26, 2018 report, he opined that appellant’s January 12, 2017 restrictions should remain in
place until further notice.
By decision dated April 11, 2018, an OWCP hearing representative affirmed OWCP’s
August 29, 2017 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.7 For each period of disability
claimed, the employee has the burden of proof to establish that he or she was disabled from work
as a result of the accepted employment injury.8 Whether a particular injury causes an employee to
become disabled from work, and the duration of that disability, are medical issues that must be
proven by a preponderance of probative and reliable medical opinion evidence.9
Under FECA the term disability means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.10 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.11 An employee who has a physical impairment causally related to his or her federal
employment, but who nonetheless has the capacity to earn the wages that he or she was receiving
at the time of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.12 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in his or her employment, he or she is entitled to compensation for any loss of wages.13
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.14 The evidence submitted must be reliable,
probative, and substantial.15 The physician’s opinion must be based on the facts of the case and

7
See B.K., Docket No. 18-0386 (issued September 14, 2018); see also Amelia S. Jefferson, 57 ECAB 183 (2005);
Nathaniel Milton, 37 ECAB 712 (1986).
8

See D.G., Docket No. 18-0597 (issued October 3, 2018); Amelia S. Jefferson, id.

9

See Edward H. Horton, 41 ECAB 301 (1989).

10

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); 20 C.F.R. § 10.5(f).

11

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

12

Merle J. Marceau, 53 ECAB 197 (2001).

13

See V.G., Docket No. 18-0936 (issued February 6, 2019).

14

D.W., Docket No. 18-0644 (issued November 15, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

15

Id.

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the complete medical background of the employee, must be one of reasonable medical certainty,
and must include objective findings in support of its conclusions.16
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow employees to self-certify their disability and entitlement
to compensation.17
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish intermittent
periods of disability commencing January 12, 2017, causally related to her accepted employment
injury. The record reflects that appellant has a preexisting, nonwork-related right shoulder rotator
cuff tear for which she underwent surgery and was released to full-duty work without restrictions
in August 2009.18 OWCP accepted the conditions of right shoulder bicipital tendinitis and right
shoulder impingement as causally related to her accepted January 12, 2017 employment injury.
In support of her claim for wage-loss compensation, appellant submitted reports from her
treating physician, Dr. Hansen. In his January 24 and 25, 2017 reports, Dr. Hansen related that
appellant’s examination was essentially unchanged and that her shoulder weakness was consistent
with chronic rotator cuff pathology. He further explained in his January 25, 2017 report that her
rotator cuff condition significantly impacted her ability to work. Dr. Hansen further related that
appellant was able to return to work as of January 12, 2017 as long as her work restrictions
remained the same. However, he offered no objective findings or medical rationale as to why
appellant’s accepted conditions caused disability.19 Rather, Dr. Hansen attributed appellant’s
work restrictions to her prior nonwork-related rotator cuff pathology.
In his June 21, 2017 report, Dr. Hansen indicated that appellant had been doing well
following her previous rotator cuff surgery, until December 2015. He also noted that appellant’s
work restrictions were based on initial findings of bicipital problems, impingement and partial
tearing of the rotator cuff. While Dr. Hansen added the accepted conditions to his opinion that
appellant required work restrictions, a conclusory medical opinion without additional explanation
as to how the accepted conditions caused disability is of limited probative value.20 Similarly, while
in his August 23, 2017 report, he offered an opinion that appellant’s rotator cuff tear had been
aggravated by her “working conditions,” his opinion was conclusory in nature and not supported
by rationalized medical opinion.

16

20 C.F.R. § 10.501(a)(2).

17

See B.K., supra note 7; William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

18

See supra note 4.

19

A.M., Docket No. 09-1895 (issued April 23, 2010); Ricky S. Storms, 52 ECAB 349 (2001).

20

See R.T., Docket No. 15-0907 (issued August 18, 2015).

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In his January 11, 2018 report, Dr. Hansen indicated that appellant’s right shoulder
condition had remained unchanged since her claim was accepted and that appellant claimed
disability wage-loss compensation by filing Forms CA-7 because the employing establishment had
not provided appellant work within her restrictions. He then indicated that appellant had a
preexisting chronic rotator cuff tear, and her accepted employment factors permanently aggravated
her right shoulder impingement syndrome and bicipital tendinitis. The issue, however, is not
whether the accepted employment factors caused the accepted conditions. Rather, the issue is
whether the accepted conditions caused disability. Dr. Hansen offered no objective findings from
the dates in question which would substantiate that appellant required work restrictions due to her
accepted conditions.21
In his remaining reports, Dr. Hansen continued to note that appellant’s examination was
unchanged and that her restrictions which went into effect on January 12, 2017 should remain in
place. Again, he offered no objective findings from the dates in question which would substantiate
that appellant could not perform her employment duties based on the accepted work-related
medical conditions.22
The February 15, 2017 Form CA-17 duty status report and the January 27, 2017 report of
work restrictions, were both signed by a physician with an illegible signature. As such, these
reports which contained illegible signatures have no probative value as it is not established that
either author is a physician.23
As appellant has not provided medical evidence containing a rationalized opinion
explaining why she was disabled from work for intermittent periods commencing January 12, 2017
causally related to her accepted employment conditions, the Board finds that she has not met her
burden of proof.
On appeal counsel contends that appellant had described a classic spontaneous worsening
and that the change in her restrictions constituted a change in her condition. As discussed above,
the medical reports of record are insufficient to establish that appellant’s disability was causally
related to her accepted conditions during the claimed period.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish intermittent
periods of disability commencing January 12, 2017, causally related to her accepted employment
injury.
21

See supra note 13.

22

Id.

23

See D.D., 57 ECAB 734 (2006); Merton J. Sills, 39 ECAB 572, 575 (1988).

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

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
DEPARTMENT OF JUSTICE, DRUG
ENFORCEMENT ADMINISTRATION,
Los Angeles, CA, Employer
__________________________________________

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

Docket No. 18-1205
Issued: April 16, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 25, 2018 appellant, through counsel, filed a timely appeal from an April 9, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3
1

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

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 9, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish permanent
impairment of his right lower extremity, or more than two percent permanent impairment of his
left lower extremity, for which he previously received a schedule award.
FACTUAL HISTORY
On November 4, 2011 appellant, then a 49-year-old criminal investigator, filed a traumatic
injury claim (Form CA-1) alleging that on November 3, 2011 he breached a front door using a
50-pound ram and felt a “pop” in his lower back while in the performance of duty. OWCP initially
accepted his claim for lumbar sprain and strain, and later expanded the accepted conditions to
include displacement of lumbar intervertebral disc without myelopathy. 4
Appellant stopped work on February 7, 2013 and, on that date, Dr. Devin Binder, a Boardcertified neurosurgeon, performed OWCP-authorized spinal surgery, including hemilaminectomy ,
foraminotomy, and arthrodesis at L4-5.
Dr. Binder provided periodic follow-up treatment postsurgery and on December 4, 2013
he released appellant to full-duty work without restrictions starting January 10, 2014. Appellant
returned to such work on February 5, 2014. In a June 25, 2014 report, Dr. Binder noted that
appellant had complained of numbness in his left thigh and left little toe, as well as nagging pain
in his left buttock. On physical examination, he noted no malalignment or tenderness in the joints,
bones, or muscles, normal gait and station, and normal sensation and motor strength in the lower
extremities.
The findings of an October 18, 2014 electromyogram and nerve conduction velocity
(EMG/NCV) study of appellant’s lower extremities demonstrated mild chronic L4-S1
polyradiculopathies of the left lower extremity, normal bilateral sural sensory responses, normal
left peroneal and tibial motor responses, no abnormal spontaneous activity of tested muscles
representing the left L2 through S1 myotomes, and no electrophysiologic evidence of generalized
sensorimotor polyneuropathy of the lower extremities.
On February 3, 2015 appellant filed a claim for schedule award (Form CA-7) alleging
permanent impairment as a result of his accepted employment conditions.
Appellant submitted a February 25, 2015 report from Dr. George Ricks, a Board-certified
family practitioner, who reported the findings of his physical examination, noting that appellant
had slightly reduced sensation and 4/5 strength in the left lower extremity. Dr. Ricks evaluated
appellant’s lower extremity permanent impairment under Table 16-12 (Peripheral Nerve
Impairment) on page 535 of the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides),5 and indicated that appellant had a nine
4

A March 14, 2012 magnetic resonance imaging (MRI) scan of appellant’s lumbar spine demonstrated mild
levoscoliosis near L2, mild disc degeneration at L2-3 through L4-5, mild prevertebral spondylosis at L2-3, mild central
canal stenosis at L4-5, mild-to-moderate lateral recess stenosis near the L5 nerve root bilaterally, and mild left
foraminal stenosis.
5

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

2

percent default value (class 1) for lower extremity impairment due to mild motor deficit of the left
sciatic nerve. Under Table 16-6 through Table 16-8 on pages 516 through 520, he determined that
appellant had a grade modifier for functional history (GMFH) of 1, grade modifier for physical
examination (GMPE) of 1, and grade modifier for clinical studies (GMCS) of 2. Application of
the net adjustment formula on page on page 521 resulted in a final value for permanent impairment
of the left lower extremity of 11 percent under the sixth edition of the A.M.A., Guides.
On July 24, 2015 OWCP referred appellant’s case to Dr. Leonard Simpson, a Boardcertified orthopedic surgeon, serving as a district medical adviser (DMA) for OWCP. It requested
that he review the medical evidence of record, including Dr. Ricks’ February 25, 2015 report, and
provide an assessment of appellant’s permanent impairment.
In an August 8, 2015 report, the DMA recommended assessing permanent impairment of
appellant’s lower extremities based on nerve root involvement utilizing The Guides Newsletter,
Rating Spinal Nerve Extremity Impairment Using the Sixth Edition (July/August 2009) (The
Guides Newsletter), rather than assessing sciatic nerve involvement as was done by Dr. Ricks. He
explained that involvement of the left L5 nerve root had been identified, noting both the level of
the February 7, 2013 surgery and results of the diagnostic studies. The DMA indicated that
appellant had slightly decreased sensation and mild weakness (4/5) associated with the L5 nerve
distribution of the left lower extremity. He then rated the permanent impairment of appellant’s
left lower extremity utilizing The Guides Newsletter. Under Proposed Table 2, appellant’s mild
sensory deficit associated with the L5 nerve distribution fell under class 1 for class of diagnosis
(CDX) with a default value of one percent. The DMA determined that appellant had a GMFH of
1 and GMCS of 2, and that the GMPE was not applicable. Application of the net adjustment
formula required +1 adjustment from the default value, and resulted in appellant having two
percent permanent impairment due to sensory deficit associated with the L5 nerve distribution.
The DMA further found that, under Proposed Table 2, appellant’s motor deficit associated
with the L5 nerve distribution warranted a class 1 default value of five percent. Application of the
net adjustment formula with the above-noted grade modifiers resulted in +1 adjustment from the
default value, and yielded seven percent permanent impairment due to motor deficit associated
with the L5 nerve distribution. The DMA noted that adding the two and seven percent values
resulted in a total finding of nine percent permanent impairment of appellant’s left lower extremity.
He indicated that the medical evidence of record did not support ongoing right lower extremity
symptomology or clinical findings, and he opined that appellant had zero percent impairment of
the right lower extremity. 6
In an undated report, Dr. Mesfin Seyoum, a Board-certified pediatrician, disputed the
conclusions of the DMA’s August 8, 2015 report. He based his conclusions on Dr. Ricks’
February 25, 2015 examination and opined that appellant had lumbar radiculopathy involving both
the left L4 and L5 nerve root distributions as indicated in an October 18, 2014 EMG/NCV study
and November 7, 2013 MRI scan.7 Dr. Seyoum rated the permanent impairment of appellant’s
left lower extremity utilizing The Guides Newsletter. Under Proposed Table 2, appellant’s mild
sensory deficit associated with the L5 nerve distribution fell under class 1 with a default value of
6
The DMA noted that the date of maximum medical improvement (MMI) was February 25, 2015, the date of
Dr. Ricks’ examination.
7

The case record does not contain a copy of a November 7, 2013 MRI scan.

3

one percent. Dr. Seyoum determined that appellant had a GMFH of 1 and GMCS of 2, and
indicated that application of the net adjustment formula yielded two percent permanent impairment
due to sensory deficit associated with the L5 nerve distribution. Under Proposed Table 2,
appellant’s motor deficit associated with the L5 nerve distribution warranted a class 1 default value
of five percent. Application of the net adjustment formula resulted in seven percent permanent
impairment due to motor deficit associated with the L5 nerve distribution. Dr. Seyoum noted that
adding the two and seven percent values yielded a finding of nine percent permanent impairment
of appellant’s left lower extremity due to L5 nerve deficits. He also found that, with respect to the
L4 nerve distribution, appellant had six percent permanent impairment comprised of a one percent
loss for sensory deficit and five percent loss for motor deficit. Dr. Seyoum utilized the Combined
Values Chart on page 406 of the A.M.A., Guides to combine the permanent impairment values
associated with the L4 and L5 nerves and concluded that appellant had 14 percent permanent
impairment of his left lower extremity.
On August 3, 2016 OWCP requested that a DMA review Dr. Seyoum’s report and render
a permanent impairment rating using The Guides Newsletter. In an August 5, 2016 report,
Dr. Michael Katz, a Board-certified orthopedic surgeon serving as a DMA, indicated that
Dr. Ricks’ February 25, 2015 examination lacked sufficient detail to make an accurate assessment
of spinal nerve impairment, because it provided little information as to which spinal nerve or
nerves might be affected as no myotomal or dermatomal distribution was identified. He opined
that, because Dr. Seyoum only referenced Dr. Ricks’ examination and did not perform his own, he
relied on vague information in forming an opinion. The DMA recommended that appellant
undergo a second opinion examination.
OWCP referred appellant for a second opinion examination to Dr. Michael Einbund, a
Board-certified orthopedic surgeon. It requested that he provide an opinion on the extent of the
permanent impairment of appellant’s lower extremities under the sixth edition of the A.M.A.,
Guides.
In a September 2, 2016 report, Dr. Einbund reported the findings of the physical
examination he conducted on that date, noting range of motion findings for the back, straight-leg
raising at 80 degrees on the right and 70 degrees on the left, and decreased sensation over the
lateral/dorsal margin of the left foot.8 Appellant had normal strength in his lower extremity
muscles, including his quadriceps, hamstrings, extensor hallicis longus, and plantar
flexors/extensors. Dr. Einbund indicated that there were no EMG/NCV studies available for
appellant’s lower extremities, and advised that he measured the severity of sensory deficit based
on his physical examination findings.
Dr. Einbund rated the permanent impairment of appellant’s left lower extremity utilizing
The Guides Newsletter. Under Proposed Table 2, appellant’s mild sensory deficit associated with
the L4 nerve distribution fell under class 1 with a default value of one percent. He had a GMFH
of 1 due to his reported difficulties with stairs/uneven terrain, left leg stiffness, and left leg pain
which awakened him at night. Dr. Einbund found that the GMPE and GMCS were not applicable.
He indicated that application of the net adjustment formula required no movement from the default
value and concluded that appellant had one percent permanent impairment due to sensory deficit
associated with the L4 nerve distribution. Dr. Einbund conducted a similar calculation to conclude
8

Dr. Einbund noted subjective complaints of a burning sensation along the left anterior lateral thigh.

4

that appellant had one percent permanent impairment due to sensory deficit associated with the L5
nerve distribution. He utilized the Combined Values Chart to combine the permanent impairment
values associated with the L4 and L5 nerves and concluded that appellant had two percent
permanent impairment of his left lower extremity. With regard to appellant’s right lower
extremity, Dr. Einbund found no objective basis for impairment. He noted that appellant’s date of
MMI was September 2, 2016.
On October 11, 2016 OWCP requested that the current DMA, Dr. Katz, review the medical
evidence of record, including Dr. Einbund’s September 2, 2016 report, and provide an opinion on
the extent of permanent impairment of appellant’s lower extremities.
On October 13, 2016 the DMA indicated that he concurred with Dr. Einbund’s
determination in his September 2, 2016 report that appellant had two percent permanent
impairment of his left lower extremity. He advised that Dr. Einbund’s report was supported by
the records reviewed and consistent with the methodology set forth in the A.M.A., Guides and The
Guides Newsletter. The DMA noted that the grade modifiers were assigned according to the
parameters set forth in the applicable tables.9 He maintained that appellant’s permanent
impairment of the left lower extremity was two percent and that he had no permanent impairment
of the right lower extremity. The DMA advised that the date of MMI was September 2, 2016.
By decision dated December 15, 2016, OWCP granted appellant a schedule award for two
percent permanent impairment of his left lower extremity. The award ran for 5.76 weeks from
September 2 through October 12, 2016 and was based on the opinions of Dr. Einbund and the
DMA.
On December 21, 2016 appellant, through counsel, requested a hearing before a
representative of OWCP’s Branch of Hearings and Review.
Appellant submitted a March 1, 2017 report from Dr. Seyoum who noted that Dr. Einbund
indicated that there were no EMG/NCV studies available for review, despite the existence of the
October 18, 2014 EMG/NCV study. Dr. Seyoum advised that he still believed that, at the time of
the February 25, 2015 evaluation, appellant had radiculopathies pertaining to his left L4 and L5
nerve roots which an impairment rating of 14 percent.
By decision dated April 18, 2017, OWCP’s hearing representative set aside the
December 15, 2016 schedule award decision prior to a hearing being held. She found that
Dr. Einbund’s report could not be given the weight of the medical evidence because he did not
review the October 18, 2014 EMG/NCV study. The hearing representative determined that further
development should be undertaken on remand by providing a copy of the October 18, 2014
EMG/NCV study to Dr. Einbund and requesting the provision of a supplemental report concerning
whether the additional medical evidence supported greater than two percent permanent impairment
of the left lower extremity.

9

The DMA discussed Dr. Einbund’s rating calculations, including those related to the L5 nerve distribution. He
inadvertently indicated that Dr. Einbund provided a rating related to the S1 nerve distribution, but the content and
context of the DMA’s report show that he meant to refer to the rating Dr. Einbund made in connection with the L4
nerve distribution.

5

On remand OWCP requested a supplemental report from Dr. Einbund. In a June 19, 2017
report, Dr. Einbund discussed the October 18, 2014 EMG/NCV study, as well as Dr. Seyoum’s
March 1, 2017 report, and indicated that the EMG/NCV study did not augment the sensory grade
deficit which remained mild. He noted that the EMG/NCV study did not reveal any motor
involvement in that it detailed normal left peroneal and tibial motor responses and he concluded
that there was no abnormal spontaneous activity in the tested muscles. Dr. Einbund advised that
these normal findings were consistent with his examination of September 2, 2016 and that, as such,
there was no basis for impairment as related to motor strength. He noted that there was no basis
to alter his prior impairment rating of two percent.
On July 19, 2016 OWCP requested that the DMA review the medical evidence, including
Dr. Einbund’s June 19, 2017 report, and provide an opinion on the extent of permanent impairment
of appellant’s lower extremities. In a July 20, 2017 report, the DMA indicated that he had
reviewed Dr. Einbund’s June 19, 2017 report and noted that he concurred with his determination
that the September 2, 2016 impairment rating should remain unchanged. He indicated that
Dr. Einbund properly concluded that the October 18, 2014 EMG/NCV study did not require him
to change his prior opinion that appellant’s sensory impairment was mild, and that he had no motor
strength deficits. The DMA opined that Dr. Einbund presented a well-reasoned defense of his
earlier determination and advised that the permanent impairment of appellant’s left lower
extremity was two percent and the permanent impairment of his right lower extremity was zero
percent.
By decision dated August 3, 2017, OWCP granted appellant a schedule award for two
percent permanent impairment of his left lower extremity. The award ran for 5.76 weeks from
September 2 through October 12, 2016 and was based on the opinions of Dr. Einbund and the
DMA.
On August 8, 2017 appellant, through counsel, requested a hearing with a representative of
OWCP’s Branch of Hearings and Review. During the hearing held on February 14, 2018 counsel
argued that Dr. Einbund and the DMA incorrectly calculated appellant’s percentage of permanent
impairment.10
By decision dated April 9, 2018, OWCP’s hearing representative affirmed the August 3,
2017 decision.
LEGAL PRECEDENT
The schedule award provision of FECA,11 and its implementing federal regulation,12 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
10

Appellant submitted July 12 and September 20, 2017, and February 28, 2018 reports of Dr. Binder which did not
address permanent impairment.
11

5 U.S.C. § 8107.

12

20 C.F.R. § 10.404.

6

the A.M.A., Guides as the uniform standard applicable to all claimants. 13 As May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards. 14
Neither FECA nor the regulations provide for the payment of a schedule award for the
permanent loss of use of the back/spine or the body as a whole. However, a schedule award is
permissible where the employment-related spinal condition affects the upper and/or lower
extremities.15 The sixth edition of the A.M.A., Guides (2009) provides a specific methodology for
rating spinal nerve extremity impairment in The Guides Newsletter. It was designed for situations
where a particular jurisdiction, such as FECA, mandated ratings for extremities and precluded
ratings for the spine. FECA-approved methodology is premised on evidence of radiculopathy
affecting the upper and/or lower extremities. The appropriate tables for rating spinal nerve
extremity impairment are incorporated in the Federal (FECA) Procedure Manual. 16
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of his right lower extremity, or more than two percent permanent impairment of his
left lower extremity, for which he previously received a schedule award.
The Board finds that Dr. Einbund, OWCP’s referral physician, properly applied the
standards of The Guides Newsletter,17 to determine that appellant has two percent permanent
impairment of his left lower extremity and zero percent impairment of his right lower extremity.
Under Proposed Table 2, appellant’s mild sensory deficit associated with the L4 nerve distribution
fell under class 1 with a default value of one percent. He had a GMFH of 1 due to his reported left
leg symptoms and the GMPE and GMCS were not applicable. Dr. Einbund indicated that
application of the net adjustment formula required no movement from the default value and
concluded that appellant had one percent permanent impairment due to sensory deficit associated
with the L4 nerve distribution. He conducted a similar calculation to conclude that appellant had
one percent permanent impairment due to sensory deficit associated with the L5 nerve distribution.
Dr. Einbund combined the permanent impairment values associated with the L4 and L5 nerves and
properly concluded that appellant had two percent permanent impairment of his left lower
extremity.18 With regard to appellant’s right lower extremity, he correctly found no objective basis
for impairment.19

13

Id.

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5a (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
15

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see A.G., Docket No. 18-0815 (issued January 24, 2019);
Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).
16

Supra note 14 at Chapter 3.700, Exhibit 4 (January 2010).

17

Id.

18

See A.M.A., Guides 406, Combined Values Chart.

19

Dr. Einbund found that the date of MMI was September 2, 2016, the date of his examination.

7

In a supplemental report dated June 19, 2017, Dr. Einbund discussed an October 18, 2014
EMG/NCV study and indicated that it did not augment the sensory grade deficit which remained
mild in nature. He noted that the EMG/NCV study did not reveal any motor deficits in the lower
extremities. Dr. Einbund indicated that these normal motor findings were consistent with his
examination of September 2, 2016 and noted that, as such, there was no basis for impairment due
to motor strength deficits. He properly concluded that there was no basis to alter his prior
calculation of permanent impairment.
The Board further finds that the DMA also properly determined that appellant has two
percent permanent impairment of his left lower extremity and zero percent permanent impairment
of his right lower extremity. On October 13, 2016 the DMA indicated that he had reviewed
Dr. Einbund’s September 2, 2016 report and noted that he concurred with his determination that
appellant had two percent permanent impairment of his left lower extremity and zero percent
permanent impairment of his right lower extremity. He found that Dr. Einbund’s September 2,
2016 report was supported by the medical reports of record and consistent with the methodology
set forth in the A.M.A., Guides. In a July 20, 2017 report, the DMA reviewed Dr. Einbund’s
June 19, 2017 report and concurred with his opinion that the September 2, 2016 impairment rating
determination should remain unchanged even after consideration of the October 18, 2014
EMG/NCV study. He again properly advised that appellant had two percent permanent
impairment of his left lower extremity and zero percent permanent impairment of his right lower
extremity.
The Board finds that the weight of the medical evidence with respect to the permanent
impairment of appellant’s lower extremities rests with the opinions of Dr. Einbund and the DMA.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of his right lower extremity, or more than two percent permanent impairment of his
left lower extremity, for which he previously received a schedule award.

8

ORDER
IT IS HEREBY ORDERED THAT the April 9, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 16, 2020
Washington, DC

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

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

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

9


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

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

Docket No. 16-0317
Issued: May 3, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 10, 2015 appellant filed a timely appeal from a November 2, 2015 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 met his burden of proof to establish a recurrence of
disability on August 18, 2015, causally related to an April 20, 2006 employment injury.
FACTUAL HISTORY
On June 30, 2006 appellant, then a 44-year-old mail processing clerk, filed an
occupational disease claim (Form CA-2) alleging that repetitive bending, stooping, twisting,

1

5 U.S.C. § 8101 et seq.

turning, and lifting caused a herniated lumbar disc.2 OWCP accepted aggravation of preexisting
low back strain on November 17, 2006. In an August 22, 2007 decision, it denied appellant’s
claim for compensation for the period November 4 to December 4, 2006.
In September 2011, appellant’s attending physician, Dr. Marshall McHenry, a Boardcertified internist, forwarded treatment notes dated February 27, 2004 to April 1, 2011. He
diagnosed lumbar disc disease on June 10, 2005. In a report dated June 20, 2011, Dr. McHenry
noted seeing appellant for complaints of bilateral foot pain and right shoulder discomfort after
arthroscopy. On November 11, 2011 he noted that he had begun treating appellant for back
strain in April 2006 and that a magnetic resonance imaging (MRI) scan demonstrated mild disc
desiccation at L5-S1. Dr. McHenry noted that appellant was still having a lot of lumbar pain and
discomfort.
OWCP referred appellant to Dr. E. Gregory Fisher, a Board-certified orthopedic surgeon,
in June 2012. In a June 29, 2012 report, Dr. Fisher noted the history of injury, his review of the
medical record including MRI scans in 2006 and 2011,3 and appellant’s report that he worked as
a mail processing clerk with restrictions and had constant, radiating low back pain, but was able
to perform activities of daily living. Appellant complained of generalized discomfort and
tenderness over the lumbar and sacral areas and over each buttock. Physical examination
showed a normal gait. He had no muscle spasms, muscle guarding, or trigger points over the
lumbar or sacral regions, but complained of pain with range of motion. Motor examination of
the lower extremities was 5/5. Sensory examination was intact to light touch. Dr. Fisher advised
that the accepted aggravation of preexisting lumbar strain had healed without residuals, noting no
objective clinical findings of lumbar strain. He opined that any continued low back complaints
were due to the nonemployment-related degenerative disc disease over L5-S1 and that, in regard
to the accepted condition, appellant could perform full duties as a mail processing clerk, but had
restrictions due to the degenerative disc disease.
On September 14, 2015 appellant filed claims for compensation for the period August 18
to September 4, 2015. An attached time analysis form indicated that he stopped work on
August 18, 2015. By letter dated September 18, 2015, OWCP informed appellant of the
evidence needed to support his compensation claim. On September 25, 2015 appellant filed a
claim for recurrence of disability (Form CA-2a). He alleged that he had sustained a recurrence
of disability on July 14, 2015 and stopped work on August 14, 2015. Appellant reported that he
had surgery on September 3, 2015.
A lumbar MRI scan dated August 20, 2015, submitted on November 2, 2015,
demonstrated disc extrusion at L2-3, unchanged mild-to-moderate spinal canal stenosis at L3-4,
and unchanged mild-to-moderate multilevel bilateral neural foraminal stenosis. In an August 28,
2015 treatment note, Dr. Mark Magner, a neurosurgeon, noted a history of severe pain radiating
into the left lower extremity of no known cause. He reviewed the imaging study reports and
discussed physical examination findings. Dr. Magner’s diagnoses included cervical disc disorder
and herniation of lumbar intervertebral disc with radiculopathy. He advised that the extruded
2

The record includes modified assignments dated March 22, 2007 and August 23, 2010.

3

Copies of the MRI scan reports are not found in the case record before the Board.

2

disc at L2-3 caused severe stenosis and severe radiculopathy into both legs. Dr. Magner
indicated that appellant wished to proceed with recommended microdiscectomy surgery.
On September 3, 2015 Dr. Magner performed left microdiscectomy surgery at L2-3. In
an undated report received by OWCP on October 27, 2015 he noted that he had last seen
appellant on October 13, 2015. Dr. Magner indicated that appellant’s diagnoses of lumbar
intervertebral disc disorder with radiculopathy and cervical spondylosis with myelopathy or
radiculopathy limited his ability to work.
By decision dated November 2, 2015, OWCP denied that appellant sustained a recurrence
of disability on August 18, 2015 and continuing. It noted that Dr. Magner advised that appellant
could not work due to conditions that had not been accepted under this claim and failed to
explain how these diagnoses were related to factors of employment or the accepted lumbar
strain.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.4 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to his or her workrelated injury or illness is withdrawn (except when such withdrawal occurs for reasons of
misconduct, nonperformance of job duties or a reduction-in-force), or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.5
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that light duty can be performed, the employee has the burden to establish by the
weight of reliable, probative, and substantial evidence a recurrence of total disability. As part of
this burden of proof, the employee must show either a change in the nature and extent of the
injury-related condition, or a change in the nature and extent of the light-duty requirements.6
An individual who claims a recurrence of disability resulting from an accepted
employment injury has the burden of establishing that the disability is related to the accepted
injury. This burden requires furnishing medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, concludes that the disabling condition is

4

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

5

Id.

6

Shelly A. Paolinetti, 52 ECAB 391 (2001); Robert Kirby, 51 ECAB 474 (2000); Terry R. Hedman, 38 ECAB
222 (1986).

3

causally related to the employment injury and supports that conclusion with sound medical
reasoning.7
ANALYSIS
The Board finds that appellant did not meet his burden of proof to establish a recurrence
of disability on August 18, 2015 causally related to the accepted aggravation of a preexisting
lumbar strain. Appellant was initially treated by Dr. McHenry who indicated that appellant had
lumber pain. Subsequently, he was seen by Dr. Fisher a second opinion physician who advised
that the accepted aggravation had resolved, but had restrictions due to the underlying
degenerative disc disease. The record does not indicate that appellant has returned to work since
the claimed recurrence.
The medical evidence submitted subsequent to the claimed recurrence includes a lumbar
MRI scan dated August 20, 2015. The Board has long held that medical evidence that does not
offer any opinion regarding the cause of an employee’s condition is of limited probative value on
the issue of causal relationship.8
In his August 28, 2015 treatment note, Dr. Magner, a neurosurgeon, noted a history of
severe pain radiating into the left lower extremity of no known cause. He reviewed the imaging
study reports and discussed physical examination findings. Dr. Magner’s diagnoses included
cervical disc disorder and herniation of lumbar intervertebral disc with radiculopathy. He
advised that the extruded disc at L2-3 caused severe stenosis and severe radiculopathy into
bilateral legs. Dr. Magner indicated that appellant wished to proceed with recommended
microdiscectomy surgery. On September 3, 2015 he performed left microdiscectomy surgery at
L2-3. In an undated report received by OWCP on October 27, 2015, Dr. Magner noted that he
had last seen appellant on October 13, 2015. He indicated that appellant’s diagnoses of lumbar
intervertebral disc disorder with radiculopathy and cervical spondylosis with myelopathy or
radiculopathy limited his ability to work.
Although Dr. Magner advised that appellant could not work, he advised that this was
caused by intervertebral disc disease of the cervical and lumbar spines, conditions that have not
been accepted. He provided no opinion regarding whether appellant was disabled due to the
accepted aggravation of lumbar strain and exhibited no knowledge of the modified duties he was
performing when he stopped work. Dr. Manger’s opinion is insufficient to establish a recurrence
of disability on August 18, 2015.
Medical opinion evidence submitted by appellant to support a claim for compensation
should reflect a correct history and should offer a medically sound explanation by Dr. Magner of
how the modified duties appellant was performing when he stopped work on August 15, 2015

7

S.S., 59 ECAB 315 (2008).

8

Willie M. Miller, 53 ECAB 697 (2002).

4

physiologically caused or aggravated the accepted aggravation of lumbar strain.9 Appellant
submitted no such evidence in this case.
The opinion of a physician supporting causal relationship must be one of reasonable
medical certainty that the condition for which compensation is claimed is causally related to
federal employment and such relationship must be supported with affirmative evidence,
explained by medical rationale and be based upon a complete and accurate medical and factual
background of the claimant.10 Dr. Magner provided insufficient rationale. His opinion,
therefore, is of diminished probative value.11
As appellant did not submit sufficient medical evidence to establish a recurrence of
disability on August 18, 2015 causally related to accepted aggravation of lumbar strain, he did
not meet his burden of proof.12
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a recurrence
of disability on August 18, 2015 causally related to an April 20, 2006 employment injury.

9

Supra note 7.

10

Patricia J. Glenn, 53 ECAB 159 (2001).

11

See T.M., Docket No. 08-975 (issued February 6, 2009).

12

Mary A. Ceglia, 55 ECAB 626 (2004).

5

ORDER
IT IS HEREBY ORDERED THAT the November 2, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 3, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.L, Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Antonio, TX, Employer
__________________________________________

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

Docket No. 09-1088
Issued: November 16, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On March 16, 2009 appellant filed a timely appeal from a February 9, 2009 nonmerit
decision of the Office of Workers’ Compensation Programs’ Branch of Hearings and Review
denying her request for a review of the written record.1
ISSUE
The issue is whether the Office properly denied appellant’s request for a review of the
written record as untimely.
FACTUAL HISTORY
On January 24, 2007 appellant, a 52-year-old rural carrier, filed an occupational disease
claim (Form CA-2) alleging that she sustained shoulder injuries as a result of employment
1

The only decision before the Board on this appeal is the Office’s February 9, 2009 nonmerit decision. The
Board lacks jurisdiction to review the Office’s most recent merit decision dated February 22, 2008, because more
than one year elapsed between its issuance and the date appellant filed her appeal. See 20 C.F.R. § 501.3(d)(2).

activities. On September 12, 2007 the Office accepted her claim for right shoulder impingement
syndrome and right sprain of the shoulder and upper arm. Appellant was placed on the periodic
rolls and received appropriate compensation benefits. On September 12, 2007 she returned to
full-time work as a modified carrier.
In a decision dated February 22, 2008, the Office terminated appellant’s compensation
payments, under the provisions of 5 U.S.C. §§ 8106 and 8115, on the grounds that her actual
earnings met or exceeded the current wages of the job held when injured. It found that the
modified carrier position was suitable and fairly and reasonably represented her wage-earning
capacity, as she had demonstrated the ability to perform the duties of this job for two months or
more. The Office attached to the decision a copy of appellant’s appeal rights, which included the
right to request an oral hearing or review of the written record within 30 days; the right to request
reconsideration within one year of the date of the decision; and the right to request review by the
Board.
On January 29, 2009 appellant requested a review of the written record and submitted
supporting documentation. She stated that her delay in filing the request was due to her
confusion regarding the time limitation on her right to file, as well as her depression due to
inability to sleep.
By decision dated February 9, 2009, the Office hearing representative denied appellant’s
request for review of the written record on the grounds that it was untimely filed. The hearing
representative stated that, after carefully considering appellant’s request, he had determined that
the issue in this case could equally well be addressed by requesting reconsideration from the
district office and submitting evidence not previously considered which establishes that the
position of a modified carrier did not reasonably represent her wage-earning capacity.
LEGAL PRECEDENT
Section 8124(b)(1) of the Federal Employees’ Compensation Act provides that, before
review under section 8128(a) of this title, a claimant for compensation not satisfied with a
decision of the Secretary is entitled, on request made within 30 days after the date of the issuance
of the decision, to a hearing on his claim before a representative of the Secretary.2 Section
10.615 of the federal regulations implementing this section of the Act provides that a claimant
shall be afforded a choice of an oral hearing or a review of the written record.3 The Office’s
regulations provide that the request must be sent within 30 days of the date of the decision for
which a hearing is sought and also that the claimant must not have previously submitted a
reconsideration request (whether or not it was granted) on the same decision.4
The Board has held that the Office, in its broad discretionary authority in the
administration of the Act,5 has the power to hold hearings in certain circumstances where no
2

5 U.S.C. § 8124(b)(1).

3

20 C.F.R. § 10.615.

4

Id. at § 10.616(a).

5

5 U.S.C. §§ 8101-8193.

2

legal provision was made for such hearings and that the Office must exercise this discretionary
authority in deciding whether to grant a hearing.6 The Office’s procedures, which require the
Office to exercise its discretion to grant or deny a hearing when the request is untimely or made
after reconsideration, are a proper interpretation of Board precedent.7
ANALYSIS
By decision dated February 22, 2008, the Office reduced appellant’s compensation
benefits to zero on the grounds that her actual earnings met or exceeded the current wages of the
job held when injured. Appellant sent her request for a review of the written record to the Office
by facsimile on January 29, 2009, which was more than 30 days after the issuance of its final
decision. The Office properly found that appellant’s request for a review of the written record
was not timely filed under section 8124(b)(1) of the Act, and that she was not entitled to such
review as a matter of right.
The Office then exercised its discretion and determined that the issue in the case could
equally well be addressed in a request for reconsideration. As the only limitation on its authority
is reasonableness, abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment, or actions taken which are contrary to both logic and
probable deductions from known facts.8 The Board finds that there is no evidence of record that
the Office abused its discretion in denying appellant’s request. Thus, the Board finds that the
Office’s denial of appellant’s request for review of the written record was proper under the law
and the facts of this case.
On appeal appellant asserts that she misunderstood the February 22, 2008 letter and
thought that she had a year to file her request. The Board notes that the Office’s February 22,
2008 decision clearly informed appellant that she had 30 days in which to request a hearing or
review of the written record.9 For reasons stated herein, the Board finds appellant’s contention
to be without merit.
CONCLUSION
The Board finds that the Branch of Hearings and Review properly denied appellant’s
request for an oral hearing as untimely filed.

6

Marilyn F. Wilson, 52 ECAB 347 (2001).

7

Teresa M. Valle, 57 ECAB 542 (2006). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and
Reviews of the Written Record, Chapter 2.1601.4(b)(3) (October 1992).
8

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

9

Appellant also indicated that, by the time she received the Office’s decision, she had been limited by her
physician to part-time work. As it concerns the merits of the Office’s February 22, 2008 decision, the Board does
not have jurisdiction to address this contention.

3

ORDER
IT IS HEREBY ORDERED THAT the February 9, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 16, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.T., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL AIR MARSHAL SERVICE,
Denver, CO, Employer
__________________________________________

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

Docket No. 18-1773
Issued: April 22, 2019

Case Submitted on the Record

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

JURISDICTION
On September 19, 2018 appellant filed a timely appeal from an April 3, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the April 3, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish greater than 13
percent permanent impairment of the right upper extremity, for which he previously received
schedule award compensation.
FACTUAL HISTORY
On September 25, 2014 appellant, then a 42-year-old federal air marshal, filed a traumatic
injury claim (Form CA-1) alleging that, on September 18, 2014, he injured his right shoulder,
elbow, and wrist lifting weights for physical fitness training while in the performance of duty. On
February 4, 2015 OWCP accepted his claim for lateral epicondylitis and lesion of the ulnar nerve
in the right upper extremity.3
Appellant underwent a right shoulder magnetic resonance imaging (MRI) scan on
February 1, 2016 which demonstrated a superior labrum anterior and posterior (SLAP) tear from
the posterior superior labrum into the biceps labral anchor. On March 4, 2016 OWCP expanded
acceptance of his claim to include C5-6 and C6-7 disc protrusion and C6-7 cervical radiculopathy.
On May 6, 2016 it expanded acceptance of appellant’s claim to include impingement syndrome of
the right shoulder and bicipital tendinitis of the right shoulder.
On November 18, 2016 OWCP referred appellant, a statement of accepted facts (SOAF),
and a list of questions to Dr. John D. Douthit, a Board-certified orthopedic surgeon, for a second
opinion evaluation. In his December 12, 2016 report, Dr. Douthit diagnosed degenerative disease
of the shoulder acromioclavicular (AC) joint and cervical spine as well as pain syndromes of the
cervical spine, right shoulder, and right elbow related to work. He found limited range of motion
(ROM) in the right shoulder resulting in 150 degrees of flexion, 130 degrees of abduction, 80
degrees of internal rotation, 30 degrees of adduction, and 40 degrees of extension. Dr. Douthit
reported that appellant’s right elbow ROM was -5 extension and 120 degrees of flexion with 80
degrees of pronation and supination. He found no dysesthesias and no weakness. Dr. Douthit
opined that appellant was at maximum medical improvement (MMI) from these conditions. He
applied the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides)4 and found that appellant had three percent permanent
impairment of the right elbow utilizing the ROM method.
On January 8, 2017 appellant filed a schedule award claim (Form CA-7).
On February 11, 2017 Dr. Morley Slutsky, Board-certified in occupational medicine,
acting as an OWCP district medical adviser (DMA), reviewed Dr. Douthit’s report and found two
percent permanent impairment of the right upper extremity based on loss of ROM of the right
3
OWCP File Nos. xxxxxx137 and xxxxxx078 have been administratively combined, with the latter serving as the
master file. OWCP File No. xxxxxx078 was accepted for generalized anxiety disorder. Appellant has not appealed
the most recent merit decision in OWCP File No. xxxxxx078, an April 5, 2018 loss of wage-earning capacity
determination. The Board will therefore, not consider that decision in this appeal. See 20 C.F.R. § 501.3.
4

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

2

elbow. He determined that appellant had only mild extension loss of the right elbow resulting in
two percent permanent impairment under the A.M.A., Guides.5 He further noted that appellant
had no clinical evidence of right lateral epicondylitis.
By decision dated June 9, 2017, OWCP granted appellant a schedule award for two percent
permanent impairment of the right upper extremity.
On June 27, 2017 appellant requested an oral hearing with a representative OWCP’s
Branch of Hearings and Review. By decision dated October 31, 2017, OWCP’s hearing
representative set aside the June 9, 2017 decision and remanded the case for a supplement report
from Dr. Douthit documenting appellant’s physical findings in accordance with the A.M.A.,
Guides.
On November 3, 2017 OWCP requested a supplemental report from Dr. Douthit and
authorized him to reexamine appellant for permanent impairment ratings related to his accepted
employment injuries. In a December 11, 2017 supplemental report, Dr. Douthit noted that
appellant reported right-sided neck, shoulder, and elbow pain. He provided appellant’s ROM for
the right shoulder based on three measurements and reached 150 degrees of flexion, 130 degrees
of abduction, 80 degrees of both internal rotation and external rotation, 30 degrees of adduction,
and 40 degrees of extension. Dr. Douthit found diffuse pain with palpation above the right
shoulder as well as pain on abduction of the right shoulder consistent with impingement.
In regard to appellant’s right elbow, Dr. Douthit took three ROM measurements and found
5 degrees of extension, 120 degrees of flexion, as well as 80 degrees of both pronation and
supination. Appellant reported pain over the lateral epicondyle and pain with gripping. His grip
strength on three measurements was 20 pounds on the right and 110 pounds on the left. Dr. Douthit
found no dysesthesias of the ulnar or radial nerves. He diagnosed pain over the lateral elbow
consistent with lateral epicondylitis.
Dr. Douthit reviewed the SOAF and medical history. He diagnosed lateral epicondylitis
of the right elbow and impingement of the right shoulder. Dr. Douthit reported that the three ROM
measurements of appellant’s right shoulder and elbow were consistent and validated. He
correlated his clinical findings with the diagnosis-based impairment (DBI) estimates of the
A.M.A., Guides and determined that appellant had mild impingement syndrome of the right
shoulder6 with class 1, grade D or two percent permanent impairment. Dr. Douthit further found
class 1, grade D or two percent permanent impairment of the right elbow due to lateral
epicondylitis.7 He concluded that appellant had four percent permanent impairment of his right
upper extremity.

5

Id. at 474, Table 15-33.

6

Id. at 402, Table 15-5.

7

Id. at 399, Table 15-4.

3

On March 21, 2018 the DMA, Dr. Slutsky, reviewed Dr. Douthit’s December 11, 2017
report and noted that for upper extremity permanent impairments FECA Bulletin No. 17-068
required that OWCP should determine whether schedule awards are available for both DBI
estimates and ROM losses, calculate both impairment ratings, and award the claimant a schedule
award based on the higher of the two impairment calculation methods. He noted that for both of
appellant’s right upper extremity conditions, the A.M.A., Guides provides that the impairments
could be based on either ROM or DBI estimates. The DMA determined that Dr. Douthit provided
valid ROM measurements. Utilizing Table 15-34, page 475, he calculated that appellant had three
percent impairment for 150 degrees of flexion, one percent impairment for 40 degrees of extension,
three percent impairment for 130 degrees of abduction, and one percent impairment for 30 degrees
of adduction, for a combined eight percent permanent impairment of the right upper extremity due
to loss of ROM of the shoulder.9 The DMA noted that there was no ratable impairment due to 80
degrees of internal and external rotation. He further utilized Table 15-33, page 474 and calculated
the percent of impairment for 120 degrees of flexion, and two percent impairment for -5 degrees
of extension for five percent permanent impairment of the right upper extremity due to the elbow
loss of ROM.10 The DMA determined that there was no ratable impairment for 80 degrees of both
pronation and supination. He found that the ROM method exceeded the impairment rating under
the DBI and determined that appellant had reached MMI on December 11, 2017, the date of
Dr. Douthit’s report. The DMA found appellant had a combined 13 percent right upper extremity
permanent impairment, or an additional 11 percent right upper extremity permanent impairment.
By decision dated April 3, 2018, OWCP granted appellant a schedule award for an
additional 11 percent permanent impairment of his right upper extremity.
LEGAL PRECEDENT
The schedule award provisions of FECA11 and its implementing regulations12 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for loss
or loss of use, of scheduled members or functions of the body. FECA, however, does not specify
the manner in which the percentage loss of a member shall be determined. The method used in
making such determination is a matter which rests in the discretion of OWCP. For consistent
results and to ensure equal justice, the Board has authorized the use of a single set of tables so that
there may be uniform standards applicable to all claimants. OWCP evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides, published in 2009.13 The Board has approved the use by OWCP of the A.M.A., Guides
8

FECA Bulletin No. 17-06 (May 8, 2017).

9

A.M.A., Guides 475, Table 15-34.

10

Id. at 474, Table 15-33.

11

5 U.S.C. § 8107.

12

20 C.F.R. § 10.404.

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.6a (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700,
Exhibit 1 (January 2010).

4

for the purpose of determining the percentage loss of use of a member of the body for schedule
award purposes.14
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).15 Under the sixth edition, the evaluator identifies the impairment class of
diagnosis (CDX) condition, which is then adjusted by grade modifiers based on functional history
(GMFH), physical examination (GMPE), and clinical studies (GMCS).16 The net adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX). Evaluators are directed to provide
reasons for their impairment rating choices, including the choices of diagnoses from regional grids
and calculations of modifier scores.17
Regarding the application of ROM or DBI impairment methodologies in rating permanent
impairment of the upper extremities, FECA Bulletin No. 17-06 provides:
“As the A.M.A., Guides caution that if it is clear to the evaluator evaluating loss of
ROM that a restricted ROM has an organic basis, three independent measurements
should be obtained and the greatest ROM should be used for the determination of
impairment, the claims examiner (CE) should provide this information (via the
updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the A.M.A., Guides
identify a diagnosis that can alternatively be rated by ROM. If the A.M.A., Guides
allow for the use of both the DBI and ROM methods to calculate an impairment
rating for the diagnosis in question, the method producing the higher rating should
be used.” (Emphasis in the original.)18
The Bulletin further advises:
“If the rating physician provided an assessment using the ROM method and the
A.M.A., Guides allow for use of ROM for the diagnosis in question, the DMA

14

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

15
A.M.A., Guides (6th ed. 2009), p.3, section 1.3, International Classification of Functioning, Disability and Health
(ICF): A Contemporary Model of Disablement.
16

Id. at 494-531.

17

R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011).

18

Supra note 8.

5

should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.”19
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish greater than 13
percent permanent impairment of the right upper extremity, for which he previously received
schedule award compensation.
OWCP accepted that appellant sustained lateral epicondylitis and lesion of the ulnar nerve
in the right upper extremity; impingement syndrome of the right shoulder and bicipital tendinitis
of the right shoulder; C5-6 and C6-7 disc protrusions; and C6-7 cervical radiculopathy due to his
September 18, 2014 employment injury.
OWCP referred appellant for a second opinion evaluation with Dr. Douthit and in his
September 18, 2014 report, he found that appellant had reached MMI due to his accepted
conditions and had permanent impairment. In his December 11, 2017 supplemental report,
Dr. Douthit found that appellant had four percent permanent impairment based on the DBI
estimates of the A.M.A., Guides. He also provided ROM measurements after three tests for
appellant’s right shoulder and elbow.
In accordance with its procedures, OWCP properly referred the evidence of record to
Dr. Slutsky, a DMA, who reviewed the clinical findings of Dr. Douthit on December 11, 2017 and
determined that appellant had 13 percent permanent impairment of the right upper extremity based
upon Dr. Douthit’s valid ROM measurements under the sixth edition of the A.M.A., Guides. He
found that appellant had reached MMI as of December 11, 2017, the date of Dr. Douthit’s
supplemental report. Utilizing Table 15-34, page 475, the DMA calculated appellant had three
percent impairment for 150 degrees of flexion, one percent impairment for 40 degrees of extension,
three percent impairment for 130 degrees of abduction, and one percent impairment for 30 degrees
of adduction, totaling eight percent permanent impairment of the right upper extremity due to the
shoulder20 loss of ROM. He noted that there was no ratable impairment due to 80 degrees of
internal and external rotation. The DMA further utilized Table 15-33, page 474 and calculated the
percent of impairment for 120 degrees of flexion, and two percent impairment for -5 degrees of
extension for five percent permanent impairment of the right upper extremity due to the elbow loss
of ROM.21 He concluded that appellant’s right upper extremity impairment rating was 13 percent
permanent impairment or an additional 11 percent right upper extremity permanent impairment.
The Board finds that the DMA discussed how he arrived at his conclusion by listing
specific tables and pages in the A.M.A., Guides and he properly interpreted the sixth edition of the
A.M.A., Guides to find that appellant had 13 percent permanent impairment of the right upper
extremity. Therefore, his opinion is the given the weight of the medical evidence and supports
19

Supra note 8.

20

A.M.A., Guides 475, Table 15-34.

21

Id. at 474, Table 15-33.

6

that appellant does not have a greater right upper extremity impairment than the 13 percent
awarded.22
There is no current medical evidence of record, in conformance with the sixth edition of
the A.M.A., Guides, establishing that appellant has greater than the 13 percent permanent
impairment of the right upper extremity previously awarded. Accordingly, appellant has not met
his burden of proof to establish that he is entitled to an additional schedule award.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish greater than 13
percent permanent impairment of his right upper extremity, for which he previously received
schedule award compensation.
ORDER
IT IS HEREBY ORDERED THAT the April 3, 2018 merit decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 22, 2019
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
22

R.R., supra note 17.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-208
Issued: May 1, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 30, 2007 appellant filed a timely appeal from a September 18, 2007 merit
decision of an Office of Workers’ Compensation Programs’ hearing representative who found
her at fault in creating a $1,312.13 overpayment for the period November 11 to
December 23, 2005. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the merits of this decision.
ISSUES
The issues are: (1) whether an overpayment was created in the amount of $1,312.13 for
the period November 11 to December 23, 2005; and (2) whether the Office properly determined
that appellant was at fault in the creation of the overpayment, thus precluding waiver.

FACTUAL HISTORY
On October 6, 2005 appellant, then a 49-year-old customer service sales associate, filed
an occupational disease claim alleging that her left rotator cuff tear was employment related.1 In
a November 27, 2005 letter, she detailed the employment duties she believed caused or
contributed to her condition. Appellant stopped work on November 11, 2005 and returned to
work with restrictions on April 3, 2006.2 The Office accepted her claim for a left rotator cuff
tear on January 10, 2006.3
On December 29, 2005 appellant filed a (Form CA-7) claim for compensation, for leave
without pay for the period November 11 to December 23, 2005. She did not check either the yes
or no box on whether the leave was intermittent. On the back of the form the employing
establishment stated an absence analysis form would be submitted once the Office adjudicated
the claim and a compensable period was identified.
The Office paid appellant wage-loss compensation in the amount of $3,741.29 for the
period November 11 to December 23, 2005. The date of payment was January 10, 2006.
On January 25, 2006 appellant filed a Form CA-7 claim for compensation requesting
leave buyback for the period November 11 to December 16, 2005. The Office approved
appellant’s request for leave buyback on February 15, 2006. The Office paid the employing
establishment for leave buyback for the period November 11 to December 16, 2005 in the
amount of $1,505.26.
The Office received an absence analysis form for the period October 29, 2005 to
January 20, 2006. During the period in question, November 11 to December 23, 2005, appellant
used 16 hours of holiday leave, 61.68 hours of sick leave, 26.10 hours of annual leave and
144.22 hours of leave without pay.
In a February 14, 2006 memorandum to file, the Office calculated the amount of the
overpayment for the period November 11 to December 23, 2005. It noted that appellant received
gross compensation of $3,741.28 when she was only entitled to $2,175.68, resulting in an
overpayment of $1,565.60. The Office subtracted appellant’s payments for health benefits
($125.97), basic life insurance ($22.50) and OLI ($105.00), which resulted in a total
overpayment amount of $1,312.13.
By letter dated February 21, 2006, the Office advised appellant of its preliminary
determination that an overpayment was created in the amount of $1,312.13 for the period
1

This was assigned claim number 09-2064733. On June 16, 2006 the Office combined claim numbers
09-0379484, 09-0463760 and 09-2064733, with claim number 09-0463760 as the master file number. The record
also contains evidence from two other claims filed by appellant. The Office accepted bilateral carpal tunnel
syndrome for claim number 09-0463760.
2

On November 11, 2005 appellant had left rotator cuff surgery.

3

Appellant filed a claim for a schedule award on May 9, 2006. As the Office has not issued a final schedule
award decision it is not an issue before the Board on this appeal. See 20 C.F.R. § 501.2(c).

2

November 11 to December 23, 2005 because she received wage-loss benefits for the same period
she received compensation for leave without pay. The Office found that appellant was at fault in
creating the overpayment. The Office asked her to submit a completed overpayment recovery
questionnaire (Form OWCP-20) and copies of supporting financial documents within 30 days if
she disagreed with the fact or amount of the overpayment and advised her of her right to request
a prerecoupment hearing or a telephone conference.
On March 3, 2006 appellant requested a prerecoupment hearing before an Office hearing
representative, which was held on August 24, 2006. Subsequent to the hearing, she submitted an
overpayment recovery questionnaire dated September 1, 2006.
By decision dated September 18, 2007, the Office hearing representative found that
appellant received an overpayment of compensation in the amount of $1,312.13 that arose
because she received both wage-loss compensation and used sick, annual and holiday leave from
November 11 to December 23, 2005. The Office hearing representative found that appellant was
only entitled to 144.22 hours of leave without pay from November 11 to December 23, 2005 but
received compensation for 248 hours. The Office hearing representative provided the calculation
of the overpayment, finding that she was due a gross amount of $2,175.68, not including
deductions for health and life insurance premiums, for the period November 11 to
December 23, 2005. As appellant received a gross amount of $3,741.28 during the period, the
Office hearing representative determined that she was overpaid by $1,312.13 by subtracting the
gross amount she was entitled to and including the deductions for health and life insurance
premiums. The Office hearing representative found that she was at fault in the matter of the
overpayment for the reason that she knew or should have known that she was accepting an
incorrect compensation payment.
LEGAL PRECEDENT -- ISSUE 1
Section 8129(a) of the Federal Employees’ Compensation Act provides in pertinent part:
“When an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which an
individual is entitled.”4
Section 8116(a) of the Act provides that an employee who is receiving compensation for
an employment injury may not receive wages for the same time period.5 Section 8118(c) of the
Act provides that compensation for disability does not begin until termination of continuation of
pay or the use of annual or sick leave ends.6

4

5 U.S.C. § 8129(a).

5

5 U.S.C. § 8116(a).

6

5 U.S.C. § 8118(c).

3

ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $1,312.13. An employee cannot receive paid leave and compensation for wage-loss during
the same period.7 That is what occurred in this case. The record contains copies of appellant’s
absence analysis for the period November 11 to December 23, 2005 and claim for compensation
(Form CA-7) for the period November 11 to December 23, 2005. She used 16 hours of holiday
leave, 61.68 hours of sick leave, 26.10 hours of annual leave and 144.22 hours of leave without
pay. On the claim for compensation form, appellant indicated that she used LWOP for the
period November 11 to December 23, 2005. She did not check yes or no to the question of
whether it was intermittent. The employing establishment noted on the back of the form that it
would provide an absence analysis once the Office adjudicated the claim and a compensable
period was identified. Appellant received both wage-loss compensation for temporary total
disability and was paid leave for the period November 11 to December 23, 2005. She was only
entitled to 248 hours of leave without pay from November 11 to December 23, 2005. The
amount of compensation paid for the hours she used leave during this period, $1,312.13, is an
overpayment of compensation.
LEGAL PRECEDENT -- ISSUE 2
The Office may consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of compensation
benefits is responsible for taking all reasonable measures to ensure that payments he or she
receives from the Office are proper. The recipient must show good faith and exercise a high
degree of care in reporting events, which may affect entitlement to or the amount of, benefits. A
recipient who has done any of the following will be found to be at fault with respect to creating
an overpayment: (1) Made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; (2) failed to provide information which he or she knew or
should have known to be material; or (3) accepted a payment, which he or she knew or should
have known to be incorrect (this provision applies only to the overpaid individual).8
ANALYSIS -- ISSUE 2
The Office found that appellant was at fault in the creation of the overpayment based on
the third criterion above, that she accepted payments which she knew or should have known to
be incorrect. In order for the Office to establish that appellant was at fault in creating the
overpayment, it must show that, at the time she received the compensation checks in question,

7

See Lee B. Bass, 40 ECAB 334 (1988); 5 U.S.C. §§ 8116, 8118.

8

20 C.F.R. § 10.433(a).

4

she knew or should have known that the payment was incorrect.9 With respect to whether an
individual is with fault, section 10.433(b) provides:
“Whether or not [the Office] determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances
surrounding the overpayment. The degree of care expected may vary with the
complexity of those circumstances and the individual’s capacity to realize that he
or she is being overpaid.”10
The record in this case supports that appellant received both pay for annual, sick or
holiday leave and wage-loss compensation for temporary total disability from the Office for the
period November 11 to December 23, 2005.
The Board finds that appellant was at fault in creating the overpayment. Appellant
asserts that she did not understand the process regarding restoring leave used during the period in
question and that she had been unaware that the Office had overpaid her. She alleged that she
did claim leave used as she had submitted a copy of a CA-7 form claiming leave buyback which
had been approved by the Office. The Board is not persuaded by appellant’s assertions.
Appellant filed two CA-7 forms. The December 29, 2005 CA-7 form contained no indication
that she had used any type of leave during the period November 11 to December 23, 2005. The
Office paid appellant on January 10, 2006 for this leave. The January 25, 2006 CA-7 form
requested leave buyback and was submitted subsequent to receipt of payment for wage-loss
compensation for the period November 11 to December 23, 2005. The record establishes that
appellant used intermittent leave during this period, but she did not indicate this on the
December 29, 2005 CA-7 form. She did not request leave buyback on the December 29, 2005
CA-7 form and did not do so until she submitted a January 25, 2006 CA-7 form. When appellant
subsequently requested leave buyback for the period November 11 to December 16, 2005, she
was aware that she had received an incorrect payment, but made no effort to return any of the
overpaid compensation. The record contains evidence of her use of holiday leave, sick leave and
annual leave during the period November 11 to December 16, 2005. She knew or should have
known that the Office’s payment of compensation for the same period constituted an
overpayment. Even though the Office erred by paying compensation for the period when
appellant had already received paid leave, this does not excuse appellant’s fault in accepting
compensation payments she knew or should have known were incorrect.11
CONCLUSION
The Board finds that the Office properly determined that appellant received an
overpayment of compensation in the amount of $1,312.13 and that she was not without fault in
the creation thereof, thereby precluding waiver of the recovery of the overpayment.

9

See Diana L. Booth, 52 ECAB 370 (2001); Robin O. Porter, 40 ECAB 421 (1989).

10

20 C.F.R. § 10.433(b).

11

Ricky Greenwood, 57 ECAB _____ (Docket No. 05-1739, issued March 10, 2006).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 18, 2007 is affirmed.
Issued: May 1, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6