United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
DEPARTMENT OF AGRICULTURE,
Fort Morgan, CO, Employer
__________________________________________

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

Docket No. 17-1378
Issued: December 17, 2018

Case Submitted on the Record

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

JURISDICTION
On June 5, 2017 appellant, through counsel, filed a timely appeal from an April 17, 2017
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a diagnosed medical
condition causally related to the accepted February 24, 2017 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal. 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 addition evidence for the first time on
appeal. Id.; P.W. Docket No. 12-1262 (issued December 5, 2012).

FACTUAL HISTORY
On March 2, 2017 appellant, then a 41-year-old food safety inspector, filed a traumatic
injury claim (Form CA-1) alleging that, on February 24, 2017, she injured the right side of her
back in the performance of duty. On the reverse side of the claim form, appellant’s supervisor
checked a box marked “yes” indicating that appellant was injured in the performance of duty. The
employing establishment also asserted that appellant engaged in willful misconduct because she
performed procedures that were not part of the required inspection procedures. It indicated that
she was pulling and representing “entire viscera repetitively.”
In a February 27, 2017 statement, which was submitted with her Form CA-1, appellant
indicated that on February 24, 2017, while she was working, she reached for a meat product she
was to inspect and felt a muscle pull on the right side of her back. She informed her supervisor
that she pulled the muscle immediately following the incident.
OWCP also received a February 28, 2017 statement from a coworker, T.R., who confirmed
that the inspectors had to reach across the table, lift product, or have company personnel retrieve
product that was not present or visible when it should have been. T.R. indicated that product was
on the wrong side of the table or out of reach at times causing the inspectors to have to reach for
the product to perform proper inspections.
By development letter dated March 7, 2017, OWCP informed appellant of the type of
evidence needed to establish her claim. It requested that she complete a questionnaire setting forth
the factual basis of her claim. OWCP also noted that the medical portion of appellant’s claim was
reviewed and was found to be insufficient. It requested a narrative report from appellant’s
attending physician, including an explanation of how appellant’s alleged February 24, 2017
employment incident caused or aggravated a medical condition. OWCP afforded her 30 days to
submit such evidence.
The employing establishment, on March 7, 2017, completed an authorization for
examination and treatment (Form CA-16) for purposes of treating appellant’s muscle strain.
In a March 16, 2017 response to the development questionnaire, appellant noted that she
had experienced a throbbing pain in her right mid-back and she immediately informed her
supervisor. She denied that she had any prior similar conditions.
OWCP received February 28 and March 3, 7, 14, 16, and 30, 2017 reports from physician
assistants and chiropractors. In a March 3, 2017 report, Dr. Josef Planansky, a chiropractor,
described the incident as related by appellant and noted that she indicated that she was standing at
her workstation where she inspected meat. Appellant advised that as a piece of meat came through
on the belt, she had to reach over to pull it closer to her, which caused pain and discomfort in her
back on the right side of her ribs. Dr. Planansky examined appellant and diagnosed pain of the
thoracic spine, pleurodynia, and cramps and spasms.
In a March 9, 2017 report, Dr. Nathan Ginn, a chiropractor, noted that appellant’s chief
complaint was throbbing and intermittent right mid-back side pain. He examined her and
diagnosed pain in the thoracic spine, pleurodynia, and cramps and spasms. In a March 14, 2017

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report, Dr. Planansky examined appellant and indicated that she could return to work with mild
restrictions. Dr. Ginn saw appellant on March 16 and 29, 2017, and diagnosed pain in the thoracic
spine and cramps and spasms.
In a February 28, 2017 note, Siegfried Emme, a nurse practitioner, assessed a back muscle
strain and recommended that appellant be placed on work restrictions with no reaching out with
the right arm. OWCP also received February 28 and March 7, 2017 work restrictions and nurses
reports.
By decision dated April 17, 2017, OWCP denied appellant’s claim, finding that the medical
evidence of record was insufficient to establish that a medical condition had been diagnosed in
connection with the claimed injury and or events. It noted in its decision that medical evidence
from a nurse, nurse practitioner, or physician assistant lacked probative value as those health care
providers are not considered physicians under FECA. OWCP also noted that a chiropractor is only
considered a physician if there is a diagnosed spinal subluxation and it is demonstrated by x-ray
to exist.
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.3
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.4 The second component is whether the employment incident caused a personal
injury.5 An employee may establish that an incident occurred in the performance of duty as
alleged, but fail to establish that the disability or specific condition for which compensation is
being claimed is causally related to the injury.6

3

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question that generally requires
rationalized medical opinion evidence to resolve the issue. Robert G. Morris, 48 ECAB 238 (1996). A physician’s
opinion on whether there is a causal relationship between the diagnosed condition and the implicated employment
factor(s) must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB 345,
352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of medical
certainty, and must be supported by medical rationale, explaining the nature of the relationship between the diagnosed
condition and appellant’s specific employment factor(s). Id.
6

Shirley A. Temple, 48 ECAB 404, 407 (1997).

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Certain healthcare providers such as physician assistants, nurse practitioners, physical
therapists, and social workers are not considered physician[s]” as defined under FECA.7
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to FECA benefits.8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted February 24, 2017 employment incident.
The Board notes that OWCP received reports from nurses dating from February 28 to
March 10, 2017. However, nurses are not considered physicians under FECA and are not
competent to render a medical opinion.9 Their reports are therefore of no probative value.
The record also contains treatment notes from physician assistants dating from February 28
to March 30, 2017. Under FECA the term “physician” includes surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope
of their practice as defined by the applicable state law.10 Consequently, the physician assistant’s
treatment notes have no probative value as the records provided cannot be considered medical
evidence.
The record also contains reports from chiropractors. They included reports dated March 3
and 14, 2017, from Dr. Planansky and reports dated March 9, 16, and 29, 2017, from Dr. Ginn.
Section 8101(2) of FECA11 provides that the term physician, as used therein, includes
chiropractors only to the extent that their reimbursable services are limited to treatment consisting
of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist and
subject to regulation by the Secretary.12 Without a diagnosis of a subluxation from x-ray, a
chiropractor is not a physician under FECA and his or her opinion on causal relationship does not
constitute competent medical evidence.13

7

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

8

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a physician
assistant or certified nurse practitioner will be considered medical evidence if countersigned by a qualified physician.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013).
9

Supra note 12; S.J., Docket No. 17-0783, n.2 (issued April 9, 2018) (nurse practitioners are not considered
physicians under FECA).
10
See 5 U.S.C. § 8101(2). See also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board has held that
a medical opinion, in general, can only be given by a qualified physician).
11

5 U.S.C. § 8101(2).

12

See 20 C.F.R. § 10.311.

13

Jay K. Tomokiyo, 51 ECAB 361, 367-68 (2000).

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The Board thus finds that appellant has not met her burden of proof as there is no medical
evidence of record to establish a diagnosed medical condition causally related to the accepted
February 24, 2017 employment incident.
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 a diagnosed
medical condition causally related to the accepted February 24, 2017 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the April 17, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 17, 2018
Washington, DC

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

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

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

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

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

Docket No. 16-1129
Issued: December 27, 2016

Case Submitted on the Record

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

JURISDICTION
On May 6, 2016 appellant filed a timely appeal from an April 1, 2016 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received a
$385.75 overpayment of compensation for the period February 3 to 6, 2016; and (2) whether
OWCP properly found that appellant was at fault in the creation of the overpayment and,
therefore, not entitled to waiver of recovery of the overpayment.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence to OWCP after the April 1, 2016 decision was
issued. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, the Board lacks jurisdiction to review this additional evidence. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On July 17, 2013 appellant, then a 43-year-old city carrier, was attacked by a dog while
delivering mail. OWCP accepted his traumatic injury claim (Form CA-1) for right biceps tendon
tear, right pectoralis partial tear, left chest wall contusion, left rib fracture, lumbar sprain, and
lumbar disc herniation at L5-S1.3 Appellant stopped work on September 4, 2013 because the
employing establishment could not accommodate his medical restrictions. OWCP paid wageloss compensation beginning September 4, 2013, and placed appellant on the periodic
compensation rolls effective October 20, 2013.
In an October 29, 2013 letter, OWCP informed appellant that, in order to avoid an
overpayment of compensation, he should immediately provide OWCP notification of a return to
work. It further advised him to return any check or direct deposit that covered a period in which
he earned wages.
On January 17, 2014 appellant elected to receive his compensation payments through
direct deposit.
In a report of termination of disability and/or payment (Form CA-3) dated February 3,
2016, the employing establishment advised OWCP that appellant had returned to part-time
modified work that day.
In a February 3, 2016 rehabilitation action report (OWCP-44), appellant’s vocational
rehabilitation counselor noted that appellant had returned to work that day and was currently in
training for two days.
In a February 3, 2016 letter, OWCP informed appellant that it made a preliminary
determination that he received an overpayment of compensation in the amount of $385.75 from
February 3 to 6, 2016 when he returned to work, when OWCP terminated benefits because he
received compensation benefits after he returned to work. It calculated the overpayment by
dividing the net compensation paid each compensation period, $2,057.82 by the 28 days in each
period to find a daily total of $73.49. OWCP multiplied $73.49 by 4, the number of days in the
period of the overpayment, to find a total overpayment of $293.97, plus $91.78 for child support,
totaling $385.75. It further advised appellant of its preliminary determination that he was at fault
in the creation of the overpayment because he was aware or should have reasonably been aware
that there was no entitlement to receive wage-loss benefits after returning to work. OWCP
requested that he complete the enclosed overpayment recovery questionnaire (OWCP-20) and
submit supporting financial documentation. Additionally, it notified appellant that, within 30
days of the date of the letter, he could request a telephone conference, a final decision based on
the written evidence, or a prerecoupment hearing.
On February 6, 2016 OWCP issued appellant an electronic funds transfer (EFT) payment
in the amount of $2,057.82 (net), covering the period January 10 to February 6, 2016. That same
day, it issued a separate EFT payment to the California State Disbursement Unit (CASDU) in the

3

Additionally, OWCP authorized three surgical procedures, which appellant underwent on June 16 and
August 16, 2014, and January 26, 2015.

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amount of $642.46 (net) for appellant’s child support obligation. The payment history reports
noted that appellant had returned to work on February 3, 2016.
On February 10, 2016 appellant filed a claim for compensation (Form CA-7) for the
period February 3 through 5, 2016.4 The employing establishment indicated that he returned to
part-time, light-duty work effective February 3, 2016. A separate time analysis form (Form CA7a) indicated that appellant had six hours of work-related training on February 3, 2016 and he
claimed two hours of leave without pay (LWOP). On February 4, 2016 appellant participated in
two hours of work-related training and claimed six hours of LWOP. On February 5 and 6, 2016
he worked four hours of light duty and claimed four hours of LWOP each day. For the four-day
period, appellant reportedly worked a total of 16 hours and claimed 16 hours of LWOP. On the
February 10, 2016 claim for compensation (Form CA-7a), the employing establishment noted
that appellant had already been paid for the claimed period, which resulted in an overpayment. It
requested that OWCP “please recover the overpayment from [February 3 through 5, 2016].”
On February 16, 2016 OWCP confirmed that appellant continued to work four hours of
light duty per day, five days per week.
Apart from filing several CA-7 forms, there is no indication from the record that
appellant specifically responded to OWCP’s February 3, 2016 preliminary overpayment
determination.
For the period February 9 through March 18, 2016, OWCP paid appellant wage-loss
compensation based on his part-time, light-duty work status.
By decision dated April 1, 2016, OWCP finalized its preliminary determination that
appellant received a $385.75 overpayment of compensation from February 3 to 6, 2016 for
which he was at fault in creating. It advised that the overpayment occurred because he returned
to work on February 3, 2016 and continued to receive compensation for total disability until
February 6, 2016. OWCP found that appellant was at fault in creating the overpayment because
he reasonably should have been aware that he was not entitled to compensation benefits for total
disability after he returned to work. It stated that he should forward a check for the full amount
of $385.75 within 30 days.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.5 Monetary compensation for total or partial
disability due to an employment injury is paid as a percentage of pay,6 meaning pay at the time
of injury or pay at the time disability begins or pay at the time compensable disability recurs if

4

Appellant also filed CA-7 forms on February 20, and March 5, and 18, 2016 for wage-loss compensation for the
period February 6 through March 18, 2016.
5

5 U.S.C. § 8102(a).

6

Id. at §§ 8105, 8106.

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the recurrence begins more than six months after the injured employee resumes regular full-time
employment with the United States, whichever is greater.7
A claimant is not entitled to receive temporary total disability benefits and actual
earnings for the same time period.8 An overpayment of compensation occurs when a claimant
returns to work and continues to receive compensation.9
Section 8129(a) of FECA provides that when an overpayment has been made to an
individual 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 the individual is
entitled.10
Section 10.431 of the implementing regulations provides that, before seeking to recover
an overpayment or adjust benefits, OWCP will advise the individual in writing that the
overpayment exists and the amount of the overpayment.11 The written notification must also
include a preliminary finding regarding whether the individual was at fault in the creation of the
overpayment.12 Additionally, OWCP is obliged to advise the individual of his right to inspect
and copy the government records relating to the overpayment.13 Lastly, the preliminary notice
must inform the individual of the right to challenge the fact or amount of the overpayment, the
right to contest the preliminary finding of fault in the creation of the overpayment, if applicable,
and the right to request a waiver of recovery of the overpayment.14
ANALYSIS
OWCP accepted appellant’s claim and paid wage-loss compensation, placing him on the
periodic compensation rolls. On February 3, 2016 appellant returned to work in a part-time,
light-duty capacity. However, OWCP subsequently paid him wage-loss compensation for total
disability through February 6, 2016. This resulted in an overpayment of compensation.15 A
claimant is not entitled to receive temporary total disability benefits and actual earnings for the

7

Id. at § 8101(4); John D. Williamson, 40 ECAB 1179 (1989).

8

L.S., 59 ECAB 350, 352-53 (2008).

9

Id.; Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.2a (May 2004).
10

5 U.S.C. § 8129(a).

11

20 C.F.R. § 10.431(a).

12

Id. at § 10.431(b).

13

Id. at § 10.431(c).

14

Id. at § 10.431(d).

15

See J.W., Docket No. 15-1163 (issued January 13, 2016).

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same time period.16 The Board, however, finds that this case is not in posture for decision
regarding the amount of the overpayment.
In its April 1, 2016 decision, OWCP found that appellant received an overpayment of
compensation in the amount of $385.75 from February 3 to 6, 2016 because he returned to work
and received compensation for total disability for a brief period following his return to work. It
calculated the overpayment by dividing the net compensation paid for the entire 28-day period
($2,057.82) by 28, which resulted in a daily compensation rate of $73.49. OWCP performed a
similar calculation with respect to the separate child support payment ($642.46 ÷ 28 = $22.94) it
disbursed on February 6, 2016. It multiplied $73.49 by 4, the number of days in the period of the
overpayment, to find a total overpayment of $293.97, plus $91.78 for child support, totaling
$385.75. However, appellant did not return to full-time work. He returned to part-time,
modified duty on February 3, 2016. The first two days appellant was in training and did not
work a full day, and beginning February 5, 2016, he worked only four hours per day and claimed
LWOP for the remaining four hours per day. Based on CA-7 forms submitted by appellant and
verified by the employing establishment, he worked only 16 hours over the four-day period
February 3 through 6, 2016. Because it does not appear that OWCP correctly calculated the
amount of the overpayment, the Board will set aside OWCP’s April 1, 2016 decision and remand
the case for further development. OWCP should recalculate the overpayment appellant received
for the period February 3 to 6, 2016.17 It should also revisit the issue of fault, and provide
appellant an overpayment recovery questionnaire (OWCP-20) and the opportunity to submit
information regarding his current monthly income, expenses, and assets to help decide whether
he is entitled to waiver of recovery of the overpayment. Following such further development as
it deems necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that OWCP properly determined that an overpayment of compensation
was created. The Board further finds that this case is not in posture for decision regarding the
amount of the overpayment appellant received for the period February 3 through 6, 2016.

16

Supra note 8.

17

In view of the disposition of issue 1, issue 2 is moot.

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ORDER
IT IS HEREBY ORDERED THAT the April 1, 2016 decision of the Office of
Workers’ Compensation Programs is set aside, and the case remanded for further proceedings
consistent with this decision of the Board.
Issued: December 27, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.C., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION,
Philadelphia, PA, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1414
Issued: March 21, 2012

Case Submitted on the Record

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

JURISDICTION
On May 24, 2011 appellant, through her attorney, filed a timely appeal from a decision of
the Office of Workers’ Compensation Programs (OWCP) dated February 7, 2011 concerning a
schedule award. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this schedule award case.
ISSUE
The issue is whether appellant has more than a three percent impairment of the right
lower extremity, for which she received a schedule award.
On appeal, appellant contends that there is a conflict in the medical opinion evidence.

1

20 C.F.R. § 8101 et seq.

FACTUAL HISTORY
This case was previously before the Board. On February 24, 2010 the Board issued a
decision affirming in part and setting aside in part a September 30, 2008 schedule award
decision. The Board affirmed OWCP’s decision granting appellant a six percent impairment of
the left upper extremity, but set aside the determination regarding the right lower extremity
impairment.2 The Board found that the opinion of Dr. David Weiss, an examining osteopath,
was of diminished probative value insufficient to determine the extent of her right lower
extremity impairment as he provided no explanation of how his evaluation of appellant
conformed to the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) (5th ed., 2001). The Board also found that the report from
Dr. Arnold T. Berman, a Board-certified orthopedic surgeon and an OWCP medical adviser, was
of diminished probative value as he provided no explanation why Chapter 17 of the A.M.A.,
Guides could not be used to determine appellant’s right lower extremity impairment. Thus, the
Board remanded the case for further medical development on the issue as there was no probative
medical report addressing appellant’s right lower extremity impairment. The facts and the
circumstances of the case as set out in the Board’s prior decisions are adopted herein by
reference.3
Following the Board’s instructions OWCP referred appellant for a second opinion
evaluation with Dr. Aldo D. Iulo, a Board-certified orthopedic surgeon. On April 28, 2010
Dr. Iulo, based upon a review of medical records, the statement of accepted facts and physical
examination, concluded that appellant had a four percent right lower extremity impairment using
the sixth edition of the A.M.A., Guides. In reaching this determination, he identified right ankle
tendinitis from page 501, which he found was class 1 and grade C, resulting in four percent right
lower extremity impairment.
On May 26, 2010 Dr. Henry J. Magliato, an OWCP district medical adviser, reviewed
Dr. Iulo’s report and concluded that an additional report was required as Dr. Iulo did not include
any grade modifiers or Disabilities of the Arm, Shoulder and Hand (QuickDASH) when
determining appellant’s impairment rating.
In a July 19, 2010 addendum, Dr. Iulo concluded that appellant had two percent right
lower extremity impairment. In reaching this determination he found a class 1, grade C using
Table 16-2, page 501. Dr. Iulo noted that Achilles tendinitis and ankle sprain under Table 16-2,
resulted in a default impairment of one percent. He found grade modifier 0 for Functional
History (GMFH)4 and Clinical Studies (GMCS)5 and a grade modifier 1 for and Physical
2

Docket No. 09-808 (issued February 24, 2010).

3

On March 21, 2002 appellant, then a 34-year-old investigative specialist, filed a traumatic injury claim alleging
that on March 20, 2002 she sustained back, neck and leg injuries as a result of her car hydroplaning and hitting a
cement barrier. OWCP accepted the claim for right ankle sprain and herniated cervical disc, which was expanded to
include a fracture of the tarsal and metatarsal bones, laminotomy, foraminotomy and right-sided C6-7 disc excision.
4

A.M.A., Guides 516, Table 16-6.

5

Id. at 519, Table 16-8.

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Examination (GMPH),6 resulting in an adjustment of 1 from the default value. Dr. Iulo noted
that he assigned a grade modifier 1 for physical examination based on palpatory findings and
tenderness. He concluded that appellant had a two percent permanent impairment to the right
lower extremity.
On July 28, 2010 Dr. Magliato reviewed Dr. Iulo’s addendum report and concluded that
appellant had a one percent right lower extremity impairment. He related that Dr. Iulo did not
apply the net modifier adjustment formula correctly. Using only a GMPE of 1, he found GMPE
(1) – CDX (1) = 0, resulting in no adjustment of the default value of one.
By decision dated August 11, 2010, OWCP denied appellant’s claim for an increased
schedule award for her right lower extremity impairment, finding that she had no greater than the
three percent impairment for which she had previously received a schedule award.
Appellant’s counsel requested an oral hearing before an OWCP hearing representative,
which took place on December 7, 2010.
By decision dated February 7, 2011, an OWCP hearing representative affirmed the
August 11, 2010 decision.
LEGAL PRECEDENT
Under section 8107 of FECA7 and section 10.404 of the implementing federal
regulations,8 schedule awards are payable for permanent impairment of specified body members,
functions or organs. FECA, however, does not specify the manner in which the percentage of
impairment shall be determined. For consistent results and to ensure equal justice under the law
for all claimants, good administrative practice necessitates the use of a single set of tables so that
there may be uniform standards applicable to all claimants. The A.M.A., Guides has been
adopted by the implementing regulations as the appropriate standard for evaluating schedule
losses.9
With respect to leg impairment based on a diagnosed ankle condition, the A.M.A.,
Guides provides a regional grid at Table 16-2.10 The class of diagnosis (CDX) is determined
based on specific diagnostic criteria and then the default value for the identified CDX is
determined. The default value (grade C) may be adjusted by using grade modifiers for GMFH,
Table 16-6, GMPE, Table 16-7 and GMCS, Table 16-8. The adjustment formula is (GMFH -CDX) + (GMPE -- CDX) + (GMCS -- CDX).11
6

Id. at 517, Table 16-7.

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

D.J., 59 ECAB 620 (2008); Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

10

A.M.A., Guides 501-08, Table 16-2.

11

The net adjustment is up to +2 (Grade E) or -2 (Grade A).

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OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.12
ANALYSIS
OWCP accepted appellant’s claim for right ankle sprain, herniated cervical disc, fracture
of the tarsal and metatarsal bones, laminotomy, foraminotomy and right-sided C6-7 disc
excision. On the prior appeal the Board affirmed OWCP’s six percent impairment of the left
upper extremity. However, it found the medical evidence insufficient regarding appellant’s right
lower extremity rating and remanded the case to OWCP for further development. The issue on
appeal is whether appellant has established that she is entitled to a greater than three percent right
lower extremity impairment, for which she was granted a schedule award.
On April 28, 2010 Dr. Iulo found that, using page 501 of the A.M.A., Guides, appellant’s
impairing diagnosis was right ankle tendinitis, which he found equaled a four percent lower
extremity impairment. He was asked to provide a supplemental report as he had failed to
consider the grade modifiers or explain how he arrived at this impairment determination. In a
July 19, 2010 report, Dr. Iulo found, in accordance with Table 16-2, Foot and Ankle Regional
Grid,13 that appellant had a two percent right lower extremity impairment based on a class 1,
grade C. He applied the modifiers for functional history, physical examination and clinical
studies found in Tables 16-6, 16-7 and 16-8, respectively.14 Dr. Iulo rated a functional history
modifier 0, a physical examination modifier 1 and a modifier 0 for clinical studies. He adjusted
appellant’s impairment rating by one based on modifier for physical examination, resulting in a
right lower extremity impairment rating of two percent. While Dr. Iulo correctly identified the
class and grade of impairment for her ankle condition, he did not properly apply the adjustment
formula.
The Board finds that Dr. Magliato, an OWCP medical adviser, applied the appropriate
tables and grading schemes of the sixth edition of the A.M.A., Guides to Dr. Iulo’s clinical
findings. Dr. Magliato correctly used the grade modifier adjustment formula to determine that
the diagnosis-based percentage did not require modification. The Board finds that his
mathematical calculations were correct. Also, there is no medical evidence of record utilizing
the appropriate elements of the sixth edition of the A.M.A., Guides demonstrating a greater
percentage of permanent impairment. Therefore, OWCP properly relied on its medical adviser’s
assessment of a one percent impairment of the right lower extremity.
This rating was based on the applicable protocols and tables of the sixth edition of the
A.M.A., Guides. As the record contains no other impairment evaluation, in conformance with
12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (January 2010). See C.K., Docket No. 09-2371 (issued August 18, 2010); Frantz Ghassan,
57 ECAB 349 (2006).
13

A.M.A., Guides 501.

14

Id. at 516-19.

4

the sixth edition of the A.M.A., Guides, showing any greater right lower extremity impairment,
the Board will affirm OWCP’s decision.
On appeal, appellant’s counsel contends that there is an unresolved conflict in the
medical opinion. Contrary to appellant’s contention there is no unresolved conflict in the
medical opinion evidence. The Board in the prior decision found Dr. Weiss’ opinion to be of
diminished probative value as he provided no explanation of how his evaluation of the employee
conformed to the applicable protocols and tables of the A.M.A., Guides. Moreover, Dr. Weiss
has not provided any impairment rating using the sixth edition of the A.M.A., Guides. His prior
impairment rating was made using the tables of the fifth edition of the A.M.A., Guides. As noted
above, for all schedule award decisions issued after May 1, 2009, the applicable version of the
A.M.A., Guides is the sixth edition. For these reasons, Dr. Weiss’ opinion is insufficient to
create a conflict in the medical opinion evidence.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that she is entitled to a greater than
three percent impairment of the right lower extremity, for which she received a schedule award.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 7, 2011 is affirmed.
Issued: March 21, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.H., Appellant
and
DEPARTMENT OF THE AIR FORCE, KELLY
AIR FORCE BASE, San Antonio, TX, Employer
__________________________________________

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

Docket No. 15-1578
Issued: November 19, 2015

Case Submitted on the Record

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

JURISDICTION
On July 15, 2015 appellant filed a timely appeal from a June 22, 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 the case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $54,416.09 because she concurrently received
Social Security Administration (SSA) benefits for the period December 1, 2005 to December 13,
2014 while receiving FECA benefits; (2) whether it properly found her at fault and thus she was
not entitled to waiver of recovery of the overpayment; and (3) whether OWCP properly required
repayment of the overpayment by deducting $110.00 every 28 days from appellant’s continuing
compensation.

1

5 U.S.C. § 8101 et seq.

On appeal appellant asserts that the only additional federal benefits she received was a
survivor annuity after her husband’s death in November 2009.
FACTUAL HISTORY
OWCP accepted that on May 19, 1998 appellant, then a 56-year-old electronic
technician, sustained contusions and sprain of the right knee, right hip, and a lumbosacral spine
strain. It adjudicated the claim under file number xxxxxx656. On March 18, 1999 appellant
sustained left leg and lumbar strains, which were accepted by OWCP. She stopped work that
day and was placed on the periodic compensation rolls. Appellant retired on disability effective
July 10, 1999.
By decision dated May 2, 2000, OWCP reduced appellant’s compensation benefits based
on her capacity to earn wages as a school secretary. On May 2, 2000 it also denied her claim for
a fractured right elbow, contusion of the right shoulder, and a mid-left foot sprain. In a July 6,
2001 decision, an OWCP hearing representative affirmed both May 2, 2000 decisions.
By letter dated November 26, 2001, OWCP advised that it had been informed that
appellant was receiving or was entitled to retirement benefits provided by the Office of Personnel
Management (OPM). It informed her that benefits from both OPM and FECA were not payable
for the same period, and she would have to elect the benefits she preferred. The correspondence
continued that appellant could receive benefits from Thrift Savings Plan (TSP) and survivor
benefits provided by the Social Security Administration (SSA) but that her FECA compensation
would be reduced by the amount of benefits paid under SSA that were attributable to her federal
service. On December 3, 2001 appellant elected FECA benefits, effective May 21, 2000.2
Appellant completed OWCP EN1032 forms on April 14, 2006, April 14, 2007, April 20,
2008, and April 2009.3 In each of these reports, she indicated that she was receiving no SSA
benefits which were part of a federal retirement benefit under the Federal Employees Retirement
System (FERS). In an unsigned EN1032 dated April 7, 2010 and received by OWCP on
April 20, 2010, appellant indicated that her husband died on November 24, 2009. She again
reported no SSA benefits as part of a FERS annuity. On EN1032 forms signed by appellant on
April 18, 2011, April 14, 2012, and April 15, 2013, she indicated that she was receiving an OPM
death benefit but no SSA annuity. On an EN1032 form signed on April 16, 2014, appellant
indicated that she was receiving an OPM death benefit and SSA benefits as part of an annuity for
federal service. She attached a statement of survivor annuity paid from OPM, stating that this
was a death benefit.
In an August 26, 2014 letter to appellant, OWCP noted that she had reached the age of 65
and it was unclear whether she was receiving retirement under FERS or the Civil Service
Retirement System (CSRS). Appellant was asked to forward within 14 days a copy of her SSA
2

In July 2010, appellant repaid an overpayment of compensation in the amount of $885.15 that was created
because she continued to receive augmented compensation through April 10, 2010, after her husband’s death on
November 24, 2009.
3

The date in the EN1032 signed in 2009 does not include a complete date, merely indicating “April 2009.”

2

award notice, a statement regarding her SSA benefit and, if applicable, submit documentation
that she was under the CSRS retirement system. The letter concluded that, even if appellant was
not currently receiving SSA benefits, she must still submit documentation and/or a written
statement indicating the system under which she was receiving retirement benefits she was
under. Appellant did not respond to the August 26, 2014 letter.
In September 2014, OWCP began development of whether appellant was receiving dual
benefits from FECA and SSA. On November 17, 2014 SSA provided information regarding
appellant’s SSA retirement benefits beginning May 2005 through December 2014, with and
without FERS offset.4 On December 16, 2014 OWCP informed appellant that her FECA
benefits were being reduced to reflect the contribution to her SSA benefits. FECA compensation
was reduced effective December 14, 2014. On an EN1032 form dated April 7, 2015, appellant
indicated she was receiving SSA benefits as part of a federal annuity.
On May 19, 2015 OWCP issued a preliminary finding that an overpayment of
compensation in the amount of $54,416.09 had been created. It explained that the overpayment
occurred because a portion of appellant’s SSA benefits, that she received from May 1, 2005 to
December 13, 2014, was based on credits earned while working in the federal government, and
that this portion of her SSA benefit was a prohibited dual benefit. OWCP found her at fault
4

The FERS offset calculation was as follows. For the period May 1 through November 30, 2005, SSA rate with
FERS was $708.00; SSA rate without was $297.70; the monthly FERS offset was $410.30; and the 28 days FERS
offset was $378.74, resulting in an overpayment of compensation in the amount of $2,894.64 for the 214-day period.
For the period December 1, 2005 through November 30, 2006, SSA rate with FERS was $737.00; SSA rate without
was $427.10; the monthly FERS offset was $427.10; and the 28 days FERS offset was $394.25, resulting in an
overpayment of compensation in the amount of $5,139.28 for the 365-day period. For the period December 1, 2006
through November 30, 2007, SSA rate with FERS was $761.30; SSA rate without was $320.10; the monthly FERS
offset was $441.20; and the 28 days FERS offset was $407.26, resulting in an overpayment of compensation in the
amount of $5,308.95 for the 365-day period. For the period December 1, 2007 through November 30, 2008, SSA
rate with FERS was $778.70; SSA rate without was $327.40; the monthly FERS offset was $451.30; and the 28 days
FERS offset was $416.58, resulting in an overpayment of compensation in the amount of $5,445.36 for the 365-day
period. For the period December 1, 2008 through November 30, 2009, SSA rate with FERS was $823.90; SSA rate
without was $346.40; the monthly FERS offset was $477.50; and the 28 days FERS offset was $440.77, resulting in
an overpayment of compensation in the amount of $5,745.74 for the 365-day period. For the period December 1,
2009 through November 30, 2010, SSA rate with FERS was $823.90; SSA rate without was $346.40, the monthly
FERS offset was $477.50; and the 28 days FERS offset was $440.77, resulting in an overpayment of compensation
in the amount of $5,745.74 for the 365-day period. For the period December 1, 2010 through November 30, 2011,
SSA rate with FERS was $823.90; SSA rate without was $346.40, the monthly FERS offset was $477.50; and the 28
days FERS offset was $440.77, resulting in an overpayment of compensation in the amount of $5,745.74 for the
365-day period. For the period December 1, 2011 through November 30, 2012, SSA rate with FERS was $853.50;
SSA rate without was $358.80; the monthly FERS offset was $494.70; and the 28 days FERS offset was $456.65,
resulting in an overpayment of compensation in the amount of $5,969.02 for the 366-day period. For the period
December 1, 2012 through November 30, 2013, SSA rate with FERS was $868.00; SSA rate without was $364.80;
the monthly FERS offset was $503.20; and the 28 days FERS offset was $464.49, resulting in an overpayment of
compensation in the amount of $6,054.99 for the 365-day period. For the period December 1, 2013 through
November 30, 2014, the SSA rate with FERS was $880.90; SSA rate without was $370.30; the monthly FERS offset
was $510.60; and the 28 days FERS offset was $471.32, resulting in an overpayment of compensation in the amount
of $6,144.03 for the 365-day period. For the period December 1 through 13, 2014, SSA rate with FERS was
$895.90; SSA rate without was $376.50; the monthly FERS offset was $519.40; and the 28 days FERS offset was
$479.45, resulting in an overpayment of compensation in the amount of $222.60 for the 13-day period. Thus, the
total overpayment of compensation was $54,416.09.

3

because beginning on April 14, 2006 and continuing until April 6, 2014, appellant had failed to
report on EN1032 forms that she was in receipt of SSA benefits. The preliminary determination
provided an explanation of the calculation of the overpayment. Appellant was provided an
overpayment action request and an overpayment questionnaire. She was informed of the actions
she could take and was afforded 30 days to respond. An overpayment worksheet indicated that
the FERS offset for the period May 5, 2005 to December 13, 2014 totaled $54,416.09.5
Appellant did not respond to the preliminary overpayment determination and did not
submit a completed overpayment action request and/or an overpayment questionnaire.
By decision dated June 22, 2015, OWCP finalized the preliminary overpayment
determination, finding that appellant had received an overpayment of compensation in the
amount of $54,416.09. The decision further found that she was at fault because she had failed to
submit information which she knew or should have known to be material. Repayment in the
amount of $110.00 was to be deducted every 28 days from her continuing compensation.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.6 Section 8116 limits the right of an employee to receive compensation:
While an employee is receiving compensation, he or she may not receive salary, pay or
remuneration of any type from the United States.7
Section 10.421(d) of the implementing regulations requires that OWCP reduce the
amount of compensation by the amount of any SSA benefits that are attributable to federal
service of the employee.8 FECA Bulletin No. 97-9 explains that FECA benefits would be
adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned as a
federal employee is part of the FERS retirement package, and the receipt of FECA benefits and
federal retirement concurrently is a prohibited dual benefit.9
ANALYSIS -- ISSUE 1
The record supports that appellant received FECA wage-loss compensation commencing
in 1999. Appellant’s compensation was reduced on May 2, 2000 based on her capacity to earn
wages as a school secretary. She began receiving SSA retirement benefits on May 1, 2005.

5

The Board notes that the preliminary determination and the overpayment worksheet noted that the overpayment
period began December 1, 2005. The calculations provided, however, used May 1, 2005, in accordance with the
SSA report.
6

5 U.S.C. § 8102(a).

7

Id. at § 8116.

8

20 C.F.R. § 10.421(d); see L.J., 59 ECAB 264 (2007).

9

FECA Bulletin No. 97-9 (issued February 3, 1997).

4

The portion of the SSA retirement benefits appellant earned as a federal employee was
part of her FERS retirement package, and the receipt of benefits under FECA and federal
retirement benefits concurrently is a prohibited dual benefit.10 Appellant’s FECA compensation
was not offset until December 14, 2014. The SSA notified OWCP of the applicable SSA rates
for appellant and their effective dates. Based on these rates, OWCP was able to calculate the
dual benefits appellant received from May 1, 2005 through December 13, 2014, which yielded
an overpayment of compensation in the amount of $54,416.09. The record includes an
overpayment worksheet explaining the overpayment calculation.
The Board has reviewed OWCP’s calculations of the dual benefits appellant received for
the period May 1, 2005 through December 13, 2014 and finds that she received dual benefits
totaling $54,416.09 as noted in the calculations of the SSA. Thus, an overpayment of
compensation in that amount was created.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”11
Section 10.433(a) of OWCP regulations provides that OWCP:
“[M]ay 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 OWCP 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 in 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; or (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).”12
To determine if an individual was at fault with respect to the creation of an overpayment,
OWCP examines the circumstances surrounding the overpayment. The degree of care expected
may vary with the complexity of those circumstances and the individual’s capacity to realize that
he or she is being overpaid.13
10

5 U.S.C. § 8116; FECA Bulletin No. 97-9, id.

11

Id. at § 8129; see Linda E. Padilla, 45 ECAB 768 (1994).

12

20 C.F.R. § 10.433(a); see Sinclair L. Taylor, 52 ECAB 227 (2001); see also 20 C.F.R. § 10.430.

13

Id. at 10.433(b); Neill D. Dewald, 57 ECAB 451 (2006).

5

ANALYSIS -- ISSUE 2
The Board agrees with OWCP’s determination that appellant was at fault in the creation
of the overpayment. OWCP based the fault finding under the second standard described, that
appellant failed to provide information which she knew or should have known to be material. In
her EN1032 forms signed from April 14, 2006 to April 15, 2013, covering periods from May 1,
2005 to April 15, 2013, appellant consistently reported that she was not receiving SSA benefits
as part of an annuity for federal service. This was not an accurate statement as, by SSA records,
she was in receipt of SSA retirement benefits effective May 1, 2005. The EN1032 forms
provide:
“PART D -- OTHER FEDERAL BENEFITS OR PAYMENTS
***
2. SSA Retirement Benefits. Report any benefits received from the SSA which
you receive as part of an annuity under the FERS. DO NOT report any benefits
received from the SSA on account of employment in the private sector.
a. Do you receive benefits from the SSA as part of an annuity for
federal service? Yes or No: ____”
The Board finds that appellant was aware that she received SSA and FECA benefits
simultaneously. Appellant inaccurately failed to report that she was receiving SSA benefits on
EN1032 forms she completed from 2006 to 2013. Based on the clear language of the forms
which she signed, she failed to provide information she knew or should have known to be
material. The Board thus finds that appellant was at fault in the creation of an overpayment for
this period.14
As to the period from April 15, 2013 to December 13, 2014, appellant reported on
EN1032 forms in April 2014 and April 2015 that she was receiving SSA benefits as part of a
federal annuity. However, as early as November 2001, OWCP advised her that it had been
informed that she was receiving or was entitled to retirement benefits provided by OPM. It
informed appellant that benefits from both OPM and FECA were not payable for the same
period, and she would have to elect the benefits which were most advantageous. The
correspondence continued that she could receive benefits from TSP and survivor benefits
provided by the SSA, but that her FECA compensation would be reduced by the amount of
benefits paid under SSA that were attributable to her federal service. Moreover, in its August 26,
2014 letter, OWCP clearly informed appellant that, as she had attained the age of 65, she needed
to provide additional information. Appellant was asked to forward a copy of her SSA award
notice, a statement regarding her SSA benefit and, if applicable, submit documentation that she
was under the CSRS retirement system. The letter concluded that, even if appellant was not
currently receiving SSA benefits, she must still submit documentation and/or a written statement
**her retirement. Appellant did not respond to the August 26, 2014 letter yet she continued to
receive FECA compensation through December 13, 2014 that was not reduced by the offset.
14

V.E., Docket No. 15-340 (issued April 1, 2015).

6

The Board, therefore, finds appellant at fault in the creation of an overpayment for this
period under the second standard, that she failed to provide information which she knew or
should have known to be material.15 Appellant is therefore at fault for the entire period of
May 1, 2005 through December 13, 2014 and is thus not entitled to waiver of recovery of the
overpayment.16
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP’s regulations provides that when an overpayment has been
made to an individual who is entitled to further payments, the individual shall refund to OWCP
the amount of the overpayment as soon as the error is discovered or his or her attention is called
to the same. If no refund is made, OWCP shall decrease later payments of compensation, taking
into account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual and any other relevant factors, so as to minimize hardship.17
ANALYSIS -- ISSUE 3
Although OWCP provided an overpayment recovery questionnaire with the May 19,
2015 preliminary finding, appellant did not submit a completed questionnaire or other financial
information that OWCP requested prior to the final June 22, 2015 overpayment decision. The
overpaid individual is responsible for providing information about income, expenses, and assets
as specified by OWCP.18 When an individual fails to provide requested financial information,
OWCP should follow minimum collection guidelines designed to collect the debt promptly and
in full.19 As appellant did not submit any financial information to OWCP as requested, the
Board finds that there is no evidence in the record to dispute OWCP’s decision to direct recovery
at a rate of $110.00 each 28 days from her continuing compensation.

15

Supra note 11.

16

Furthermore, even had appellant been found entitled to waiver, because she did not respond to the May 19,
2015 preliminary overpayment finding, she did not provide a basis on which waiver could be granted. See W.P., 59
ECAB 514, 2008.
17

20 C.F.R. § 10.441; see Steven R. Cofrancesco, 57 ECAB 662 (2006).

18

Id. at § 10.438.

19

Frederick Arters, 53 ECAB 397 (2002); Federal (FECA) Procedure Manual, Part 6 -- Debt Management,
Chapter 6.200.4.c(2) (June 2009).

7

CONCLUSION
The Board finds that OWCP properly determined that appellant was at fault in the receipt
of an overpayment of compensation in the amount of $54,416.09 and that OWCP properly
required recovery of the overpayment by deducting $110.00 every 28 days from her continuing
compensation payments.
ORDER
IT IS HEREBY ORDERED THAT the June 22, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 19, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


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

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

Docket No. 12-1348
Issued: February 25, 2013

Case Submitted on the Record

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

JURISDICTION
On June 7, 2012 appellant filed a timely appeal from the January 11, 2012 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained
disability due to her October 24, 2007 work injury on or after December 10, 2007.
FACTUAL HISTORY
On October 26, 2007 appellant, then a 48-year-old distribution clerk, filed a claim
alleging that she sustained a traumatic injury to her low back and left leg on October 24, 2007
after bending and lifting while dumping and breaking down mail. She felt a pulling strain in her
lower back and a shooting pain down her left leg. On the form, appellant’s supervisor noted that

1

5 U.S.C. §§ 8101-8193.

appellant advised him on October 25, 2007 that the claimed injury occurred on October 24, 2007.
Appellant stopped work on October 24, 2007.
In an October 25, 2007 note, Dr. Joseph Gigante, an attending Board-certified family
practitioner, stated that appellant reported experiencing back and leg pain after lifting, squatting
and bending over while breaking down mail the prior day. On examination, appellant had
decreased back motion and diagnosed low back strain/sprain. Dr. Gigante arranged for appellant
to undergo magnetic resonance imaging (MRI) scan testing. The findings of a November 5,
2007 MRI scan of appellant’s back showed bulging discs at L3-4 and L5-S1 and slight anterior
spondylolisthesis of L4 upon L5.2
In a December 2, 2007 form report, Dr. Gigante listed the date of injury as October 27,
2007 and the history of injury as “lifting heavy objects.”3 He diagnosed low back sprain and
checked a “yes” box indicating that appellant’s condition was caused or aggravated by the
reported employment activity. Dr. Gigante stated that appellant had been totally disabled since
the time of the injury.
In a December 20, 2007 report, Dr. Kevin J. Mullins, an attending Board-certified
neurosurgeon, stated that appellant reported hurting her back on October 27, 2007 due to
repetitive heavy lifting. He stated that she “presents following a work-related injury with
significant myofascial back pain.” Dr. Mullins recommended that appellant participate in an
outpatient spinal rehabilitation program.
In an undated report submitted with a January 8, 2008 letter, Dr. Jamie P. Skurka, an
attending chiropractor, stated that appellant reported that she injured her lumbar spine on
October 27, 2007 and that her job required repetitive lifting, twisting and turning. He noted that
November 5, 2007 MRI scan testing showed bulging discs at L3-4 and L5-S1 and slight anterior
spondylolisthesis of L4 upon L5 and listed these conditions in the diagnosis portion of his report.
Dr. Skurka obtained x-ray testing and also diagnosed lumbar facet syndrome, lumbar radiculitis
and myofascial pain syndrome. He stated that appellant’s lumbar condition was “resultant from
the repetitive lifting, twisting and bending event that occurred on October 27, 2007.”
In a February 20, 2008 decision, OWCP denied appellant’s claim that she sustained an
employment-related traumatic injury on the grounds that she did not establish the occurrence of
an employment incident. It noted that there were inconsistencies in the factual aspects of
appellant’s claim.
Appellant submitted a January 12, 2008 report from Dr. Skurka, who advised that x-ray
testing of her lumbar spine was obtained on January 11, 2008 from four views -- anteroposterior,
lateral, flexion and extension. Regarding the testing results, Dr. Skurka stated:
“All views were of diagnostic quality. There is no evidence of instability. There
is a transitional segment at the lumbosacral junction. At L4 there is grade 1
2

The record contains an October 25, 2001 note indicating that appellant could return to work on October 29,
2007 in a job that did not require heavy lifting. The note contained an address stamp from Dr. Gigante’s office but
was not signed by a physician.
3

Dr. Gigante’s listing of the date of injury as October 27, 2007 would appear to be inadvertent as he previously
listed the proper date of October 24, 2007 when he examined appellant on October 25, 2007.

2

spondylolisthesis, anterior subluxation upon L5. There is no change upon
flexion/extension views. There is soft tissue calcification within the region of the
abdominal aorta. There is decreased intervertebral disc spacing at L4-5. The
lumbar spine is hyperlordotic. There is no evidence of fracture. The osseous
structures are of normal size, shape and density.”
Appellant submitted form reports of Dr. Skurka, dated from February to May 2008, that
contained the diagnoses of lumbosacral spondylolisthesis, lumbar facet syndrome, disc bulging
at L3, L4, L5 and S1 and lumbar radiculopathy. Dr. Skurka indicated that appellant currently
was totally disabled and that her first date of disability was January 8, 2008.
In a May 29, 2008 decision, OWCP denied appellant’s request for further review of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
In a January 27, 2009 decision,4 the Board modified OWCP’s February 20, 2008 decision
to reflect that an employment incident occurred on October 24, 2007 when appellant engaged in
bending and lifting while dumping and breaking down mail. The Board further found that
Dr. Gigante’s reports raised an uncontroverted inference between appellant’s claimed back
condition and the October 24, 2007 incident. The Board remanded the case to OWCP for further
development of the medical evidence.
OWCP referred appellant to Dr. Sanford R. Wert, a Board-certified orthopedic surgeon,
for a second opinion examination. In a March 26, 2009 report, Dr. Wert reported the findings
from examination of March 24, 2009. He diagnosed lumbosacral spine sprain, related to the
incident of October 24, 2007. Dr. Wert stated that appellant’s lumbosacral spine sprain was
related by direct cause and noted that her preexisting degenerative disease was related by
temporary aggravation. He found that the aggravation should have ceased following the fourmonth course of physical therapy. On examination, appellant complained of pain and exhibited
diminished range of motion, but her complaints were not corroborated by objective findings and
that the examination of her left leg was entirely within normal limits. He found no objective
evidence of any ongoing disability and indicated that appellant was capable of resuming the
regular duties of a distribution clerk. Dr. Wert did not provide an opinion that appellant had
work-related disability for any period in the past.
On May 6, 2009 OWCP accepted that appellant sustained a lumbar sprain and temporary
aggravation of preexisting degenerative disc disease of the lumbar spine, resolved.
Appellant filed claims alleging that she had disability due to her October 24, 2007 work
injury beginning December 10, 2007 and continuing.
In a May 13, 2009 form report, Dr. Skurka listed the date of injury as October 24, 2007
and diagnosed grade 1 spondylolisthesis at L4, lumbar radiculopathy, lumbar facet syndrome,
disc bulging at L3, L4, L5 and S1 and spinal intersegmental joint dysfunction. He checked a
“yes” box indicating that these conditions were caused or aggravated by an employment activity
and indicated that appellant was totally disabled from January 8, 2008 to the present. In another
May 13, 2009 form report, Dr. Skurka indicated that appellant was temporarily totally disabled
“due to lumbar spine condition.”
4

Docket No. 08-1879 (issued January 27, 2009).

3

In a May 18, 2009 report, Dr. Steven J. Litman, an attending Board-certified
anesthesiologist, stated that appellant had bilateral back pain and bilateral lumbosacral
radiculopathy secondary to a lumbar spine injury sustained at work.5 He also indicated that
appellant had spondylolisthesis. Dr. Litman noted that appellant would undergo an L4-5
epidural steroid injection for treatment of bilateral lumbosacral radiculopathy “causally related to
a workers’ compensation injury.”6
In a May 19, 2009 report, Dr. Andrew D. Rogove, an attending Board-certified
neurologist, stated that appellant was injured at work while distributing mail on October 24, 2007
and noted that she came in for evaluation of back pain. He indicated that appellant had a normal
neurologic examination with a negative straight leg raise (highly doubtful for profound herniated
disc), but stated that she did have radicular pain intermittently in her right leg. Dr. Rogove
recommended that she continue with conservative therapy, including chiropractic and pain
management therapy. On June 29, 2009 he indicated that appellant needed an MRI scan study to
rule out a back pathology.7
OWCP requested that Dr. Wert provide a supplemental report on the question of whether
appellant had any disability following her October 24, 2007 work injury. On August 5, 2009
Dr. Wert advised that the opinion he expressed in his March 24, 2009 report remained
unchanged and stated, “As I examined the claimant on March 24, 2009, one year and five
months post injury, I am unable to comment on whether or not the claimant was totally disabled
at any time following the March 24, 2007 injury.”
In an October 16, 2009 decision, OWCP denied appellant’s claim on the grounds that she
did not submit sufficient medical evidence to establish that she had disability due to her
October 24, 2007 work injury on or after December 10, 2007. It indicated that the reports of
Dr. Skurka did not constitute medical evidence.
Dr. Mullins reported the findings of June 22, 2010 electromyogram (EMG) and nerve
conduction velocity (NCV) testing on appellant’s legs. He indicated that EMG testing revealed
unremarkable findings with no support for the presence of a lumbar radiculopathy.8 NCV testing
revealed a normal study with unremarkable findings.
In a January 5, 2011 decision, OWCP affirmed its October 16, 2009 decision denying
appellant’s claim for disability due to her October 24, 2007 work injury.
Appellant submitted a June 7, 2010 report in which Dr. Erlinda D. Austria, an attending
Board-certified surgeon, diagnosed injury to lower back at work in 2007 and herniated and
bulging lumbar disc with subluxation. Dr. Austria stated that appellant had mild-to-moderate
5

Dr. Litman mentioned an October 24, 2007 injury but did not provide any description of it.

6

On August 21, 2009 Dr. Litman indicated that appellant would follow up with him for another epidural steroid
injection.
7

On August 17, 2009 Dr. Rogove indicated that appellant would be referred to a neurosurgical consult if she
failed conservative treatment.
8

It was noted that, if a radiculopathy was present, it had not resulted in a significant degree of motor axonal
degeneration.

4

restrictions for squatting, bending, prolonged sitting, standing and walking and moderate
restriction and limited range of motion for activities involving both knees, greater on the left.
In a January 14, 2011 report, Dr. Skurka diagnosed lumbar spinal subluxation at L4,
lumbar spondylolisthesis/anterolisthesis at L4, lumbar radiculopathy, lumbar facet syndrome,
and multilevel lumbar disc bulging from L3-4 to L5-S1 with foraminal canal stenosis. He stated:
“In my professional opinion, [appellant’s] present clinical status pertaining to her
lumbar spine is directly correlated to her work-related injury occurring on
October 24, 2007. Although the patient did have a prior lumbar spine disorder for
which she was out of work for approximately one year, the patient eventually
returned to full-duty employment and was working on a full[-]time basis as a
clerk for the U.S. Postal Service. In review of the medical records that I had
available, there were no indications that[,] prior to October 24, 2007, there were
no indications for discussions of spinal surgery. There were no indications for
any pain management procedures. There was no prolonged chiropractic treatment
as indicated by the patient and there was no indication that the patient required a
dorsal column pain stimulator that she does require at the present time, to aid with
managing of the present status of her lumbar spine.”
In an October 13, 2011 letter, appellant requested reconsideration of his claim and argued
that the reports of Dr. Skurka should be considered as relevant medical evidence.
In a January 11, 2012 decision, OWCP affirmed its January 5, 2011 decision finding that
appellant submit probative medical evidence relating the claimed periods of disability to the
October 24, 2007 work injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.9 The medical evidence required to establish a causal
relationship between a claimed period of disability and an employment injury is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the compensable employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.10

9

J.F., Docket No. 09-1061 (issued November 17, 2009).

10

See E.J., Docket No. 09-1481 (issued February 19, 2010).

5

The Board has held that when a physician’s opinion on causal relationship consists only of
checking “yes” to a form question, that opinion has little probative value and is insufficient to
establish causation with respect to a medical question. Appellant’s burden includes the necessity
of furnishing an affirmative opinion from a physician who supports his conclusion with sound
medical reasoning.11
Under section 8101(2) of FECA, chiropractors are only considered physicians, and their
reports considered medical evidence, to the extent that they treat spinal subluxations as
demonstrated by x-ray to exist.12 OWCP’s regulations at 20 C.F.R. § 10.5(bb) have defined
subluxation as an incomplete dislocation, off-centering, misalignment, fixation or abnormal
spacing of the vertebrae which must be demonstrable on any x-ray film to an individual trained
in the reading of x-rays.13
ANALYSIS
OWCP accepted that on October 24, 2007 appellant sustained a lumbar sprain and
temporary aggravation of preexisting degenerative disc disease of the lumbar spine, resolved.
She filed claims alleging disability due to her October 24, 2007 work injury commencing
December 10, 2007.
The Board finds that appellant did not submit sufficient medical evidence to establish that
that she sustained disability due to her October 24, 2007 work injury on or after
December 10, 2007.
Appellant submitted reports beginning in January 2008 for Dr. Skurka, an attending
chiropractor. The Board finds that these reports constitute medical evidence because Dr. Skurka
diagnosed a spinal subluxation as demonstrated by x-ray testing.14 In a January 12, 2008 report,
Dr. Skurka stated that x-ray testing of appellant’s lumbar spine was obtained on January 11,
2008 and showed grade 1 spondylolisthesis at L4, with anterior subluxation upon L5.
The Board finds that, although Dr. Skurka provided an opinion of appellant’s disability,
he did not provide a rationalized medical opinion explaining that appellant sustained disability
due to her October 24, 2007 work injury for specific periods on or after December 10, 2007.
In several reports dated in the first half of 2008, Dr. Skurka provided diagnoses of
lumbosacral spondylolisthesis, lumbar facet syndrome, disc bulging at L3, L4, L5 and S1 and
lumbar radiculopathy. He noted that appellant currently was totally disabled and that her first
date of disability was January 8, 2008. These reports do not establish appellant’s claim because
Dr. Skurka did not clearly address what conditions he believed caused appellant’s disability.
Dr. Skurka listed a number of diagnosed conditions which have not been accepted by OWCP as
related to the October 24, 2007 work injury. His reports do not establish that the conditions were
work related.
11

Lillian M. Jones, 34 ECAB 379, 381 (1982).

12

5 U.S.C. § 8101(2). See Jack B. Wood, 40 ECAB 95, 109 (1988).

13

20 C.F.R. § 10.5(bb); see also Bruce Chameroy, 42 ECAB 121, 126 (1990).

14

See supra notes 12 and 13.

6

In a May 13, 2009 form report, Dr. Skurka listed the date of injury as October 24, 2007
and diagnosed grade 1 spondylolisthesis at L4, lumbar radiculopathy, lumbar facet syndrome,
disc bulging at L3, L4, L5 and S1, and spinal intersegmental joint dysfunction. He checked a
“yes” box indicating that these conditions were caused or aggravated by an employment activity
and indicated that appellant was totally disabled from January 8, 2008 to the present. In another
May 13, 2009 form report, Dr. Skurka indicated that appellant was temporarily totally disabled
“due to lumbar spine condition.” He again listed a number of conditions that were not accepted
by OWCP and he did not provide any explanation for his apparent belief that a work-related
condition caused disability. As Dr. Skurka did no more than check “yes” to a form question, his
opinion on the cause of appellant’s disability is of little probative value and is insufficient to
discharge appellant’s burden of proof.15 He did not provide a complete medical history of
appellant’s condition or support his conclusion with sound medical reasoning.
In a January 14, 2011 report, Dr. Skurka diagnosed lumbar spinal subluxation at L4,
lumbar spondylolisthesis/anterolisthesis at L4, lumbar radiculopathy, lumbar facet syndrome,
and multilevel lumbar disc bulging from L3-4 to L5-S1 with foraminal canal stenosis. He
asserted that appellant had limited need for back care prior to October 24, 2007 and stated, “In
my professional opinion, [appellant’s] present clinical status pertaining to her lumbar spine is
directly correlated to her work-related injury occurring on October 24, 2007.” Dr. Skurka again
implicated nonwork-related conditions and failed to provide adequate medical rationale for his
opinion. Although he indicated that appellant’s current condition was related to the October 24,
2007 work injury, he did not provide a clear opinion that the October 24, 2007 injury caused
disability for any specific periods.
Appellant received medical treatment from several attending physicians, including
Dr. Litman, a Board-certified anesthesiologist, Dr. Rogove, a Board-certified neurologist, and
Dr. Austria, a Board-certified surgeon. Although these physicians discussed appellant’s back
condition, they provided no opinion that she sustained disability on or after December 10, 2007
due to her October 24, 2007 work injury.16 These physicians also diagnosed a number of
conditions that are not accepted as work related, such as lumbar radiculopathy.17 Appellant has
not submitted medical evidence establishing that she sustained disability due to her October 24,
2007 work injury on or after December 10, 2007.
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.

15

See supra note 11.

16

OWCP based its acceptance of appellant’s work conditions on the opinion of Dr. Wert, a Board-certified
orthopedic surgeon. It explicitly asked Dr. Wert whether appellant sustained disability for any period due to her
October 24, 2007 work injury and Dr. Wert responded that he could not provide such an opinion. Dr. Gigante, an
attending Board-family practitioner, indicated in a brief form report that appellant had work-related disability prior
to December 2, 2007, but appellant has only claimed disability for the period December 10, 2007 and continuing in
the present case.
17

The findings of June 22, 2010 EMG testing of appellant’s legs revealed unremarkable findings with no support
for the presence of a lumbar radiculopathy and that NCV testing revealed a normal study with unremarkable
findings.

7

CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained disability due to her October 24, 2007 work injury on or after December 10, 2007.
ORDER
IT IS HEREBY ORDERED THAT the January 11, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 25, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Las Vegas, NV, Employer
__________________________________________

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

Docket No. 10-2096
Issued: June 7, 2011

Case Submitted on the Record

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

JURISDICTION
On August 13, 2010 appellant filed a timely appeal from the August 5, 2010 Office of
Workers’ Compensation Programs’ schedule award decision. Pursuant to the Federal
Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant has more than 12 percent impairment of his right lower
extremity, for which he received a schedule award.
FACTUAL HISTORY
Appellant, a 30-year-old letter carrier, injured his right knee and right quadriceps on
May 9, 2009 when his mail truck was struck head on by another vehicle. He filed a claim for
benefits on May 11, 2009, which the Office accepted for ruptured right quadriceps tendon; open

1

5 U.S.C. § 8101 et seq.

wounds to his right quadriceps, hip, knee and ankle; cervical sprain; contusion of right hip;
contusion of right abdominal wall; and contusions of his face, scalp and neck.
On May 14, 2009 appellant underwent surgery to repair his ruptured quadriceps tendon,
in addition to right knee irrigation and debridement and closure of laceration. The procedure was
performed by Dr. Renny Uppal, a Board-certified orthopedic surgeon.
On February 9, 2010 appellant filed a Form CA-7 claim for a schedule award based on a
partial loss of use of his right lower extremity.
In order to determine whether appellant had any permanent impairment from his accepted
right quadriceps condition, the Office referred him to Dr. Aubrey A. Swartz, Board-certified in
orthopedic surgery. In a June 9, 2010 report, Dr. Swartz found that appellant had a 12 percent
permanent impairment of the right lower extremity pursuant to the American Medical
Association, Guides to the Evaluation of Permanent Impairment (sixth edition) (A.M.A.,
Guides). He found that appellant had a 2 centimeter atrophy of the right quadriceps by
measuring a 56.5 centimeter circumference in the right quadriceps, as opposed to 58.5 centimeter
circumference in the left quadriceps. Dr. Swartz also found a 1 centimeter atrophy in his right
calf by measuring a 41 centimeter circumference in the right quadriceps, as opposed to a 42
centimeter circumference in the left calf. He concluded that there was 3.5 to 4/5 quadriceps
strength on the right with 4/5 hamstring strength. Dr. Swartz also calculated a 40 degree loss of
range of motion impairment by calculating 0 to 100 degrees range of motion in the right knee as
opposed to 0 to 140 degrees range of motion in the left knee.
Dr. Swartz determined that appellant’s ruptured quadriceps tendon yielded a default
impairment of class 1, which equated to 10 percent impairment -- a mild problem/moderate
motion deficit -- under the knee regional grid at Table 16-3, page 509 of the A.M.A., Guides.2
He then added and subtracted the grade modifiers from Table 16-6 and Table 16-7. This yielded
12 percent impairment of the right lower extremity impairment for repaired ruptured right
quadriceps tendon, moderate motion deficit/and or significant weakness.
In a July 2, 2010 report, an Office medical adviser adopted Dr. Swartz’s findings and
conclusions and found that appellant had 12 percent permanent impairment of the right lower
extremity.
By decision dated August 5, 2010, the Office granted appellant a schedule award for 12
percent permanent impairment of the right lower extremity for the period May 14, 2010 to
January 10, 2011, for a total of 34.56 weeks of compensation.
LEGAL PRECEDENT
The schedule award provision of the Act3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
2

A.M.A., Guides 509.

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404. Effective May 1, 2009, the Office began using the A.M.A., Guides (6th ed. 2009).

2

loss, or loss of use, of scheduled members or functions of the body. However, the Act does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.5
ANALYSIS
In its August 5, 2010 decision, the Office granted appellant a schedule award for 12
percent right lower extremity impairment based on a ruptured right quadriceps repair, moderate
motion deficit and/or significant weakness, using the applicable table of the sixth edition of the
A.M.A., Guides. The section of the A.M.A., Guides which rates diagnosis-based impairments
for the lower extremities is located at Chapter 16, which states at page 497, section 16.2a that
impairments are defined by class and grade. This section states:
“The Impairment Class (IC) is determined first, by using the corresponding
diagnosis-based regional grid. The grade is then determined using the adjustment
grids. Once the impairment class has been determined, based on the diagnosis,
the grade is initially assigned the default value, C. The final impairment grade,
within the class, is calculated using the grade modifiers, or nonkey factors, as
described in section 16.3. Grade modifiers include functional history, physical
examination, and clinical studies. The grade modifiers are used on the net
adjustment formula described in section at 16.3d to calculate a net adjustment.
The final impairment grade is determined by adjusting the grade up or down the
default value C by the calculated net adjustment.”6
Using the formula above and the net adjustment formula outlined at pages 516-18 and
521-22 of the A.M.A., Guides, Dr. Swartz found that appellant had a class 1 default impairment.
He determined that appellant had a grade 1 impairment for functional history at Table 16-6, and
a grade 2 impairment for physical examination at Table 16-7; he then applied the net adjustment
formula at pages 521-522 of the A.M.A., Guides. Using the net adjustment formula for
functional history at Table 16-6 and physical examination at Table 16-7, Dr. Swartz subtracted
the grade of 1 for functional history from the grade modifier of 2 for physical examination,
which equaled an impairment of 1, as adjusted; this yielded a grade D impairment. Based on this
calculation, he found that appellant had an adjusted 12 percent right lower extremity impairment
for ruptured right quadriceps repair, moderate motion deficit and/or significant weakness.
The Board finds that appellant has 12 percent permanent impairment of his right lower
extremity, as this rating was based on the applicable protocols and tables of the sixth edition of
the A.M.A., Guides. As appellant did not submit any medical evidence to support an additional
schedule award greater than 12 percent for the right lower extremity, the Board will affirm the
Office’s August 5, 2010 decision.

5

Id.

6

A.M.A., Guides 497.

3

On appeal, appellant alleges that he has not been fully compensated for his pain, change
in life style, and restriction of activities caused by his permanent impairment. The terms of the
Act are however specific as to the method and amount of payment of compensation. Neither the
Office nor the Board has the authority to enlarge the terms of the Act or to make an award of
benefits under any terms other than those specified in the statute.7
CONCLUSION
The Board finds that appellant has no more than 12 percent permanent impairment of the
right lower extremity, for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
August 5, 2010 decision be affirmed.
Issued: June 7, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7

See Helen A. Pryor, 32 ECAB 1313 (1981).

4


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

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

Docket No. 09-201
Issued: August 14, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 27, 2008 appellant filed a timely appeal from October 2 and March 26, 2008
decisions of the Office of Workers’ Compensation Programs denying a recurrence of disability.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the
claim.
ISSUE
The issue is whether appellant has established that she sustained a recurrence of disability
from September 1 to December 26, 2007 causally related to her accepted upper extremity and
cervical spine conditions.
FACTUAL HISTORY
The Office accepted that on or before June 22, 2001 appellant, then a 46-year-old clerk,
sustained cervical disc displacement, aggravation of tendinitis of the right elbow and aggravation
of bursitis in the right shoulder. She began light-duty work on July 6, 2001 and remained on
light duty through August 30, 2007.

Dr. William E. Monk, an attending Board certified family practitioner, submitted reports
from July 31 to October 9, 2001 diagnosing right shoulder bursitis, right elbow tendinitis,
bilateral carpal tunnel syndrome and cervical degenerative disc disease. He limited lifting and
repetitive motion. Dr. Louis Lurie, an attending Board-certified orthopedic surgeon, submitted
reports from October 31, 2001 to January 18, 2002. He diagnosed neck pain and bilateral carpal
tunnel syndrome. Dr. Lurie restricted lifting to eight pounds for no more than two hours a day
and not above table height.
In a December 10, 2001 report, Dr. William S. Adsit, a Board-certified orthopedic
surgeon and second opinion physician, opined that repetitive upper extremity motion at work
aggravated cervical spondylosis and exacerbated the accepted right shoulder impingement
syndrome.
On November 23, 2007 appellant claimed a recurrence of disability commencing
September 1, 2007. On the reverse of the form, her supervisor noted that she had just begun a
new full-duty position but asked for accommodation because she was restricted to lifting 10
pounds or less. The supervisor instructed appellant to obtain current medical restrictions from
her physician. However, appellant did not return. She mailed documents to the employing
establishment in November but the Office advised that her compensation claim was closed.
Appellant returned to work on December 27, 2007.
In a January 2, 2008 letter, the Office advised appellant of the additional evidence needed
to establish her claim, including a detailed description of her job activities before and after
September 1, 2007.
In January 18 and 23, 2008 letters, the employing establishment stated that until
August 30, 2007, appellant worked light duty writing notices and putting mail in the employing
establishment’s boxes. Appellant’s duties did not require heavy lifting. As of September 1,
2007, she was in training for a full-duty position in the automation section. The night of
September 1, 2007, appellant processed approximately 30,000 pieces of mail with a training
partner.
In a February 15, 2008 letter, appellant stated that her duties on September 1, 2007
exacerbated the accepted conditions. She contended that a supervisor told her to leave as she
could not be accommodated.1 Severe financial difficulties prompted appellant to return to work
on December 27, 2007. In a September 24, 2007 report, Dr. Pamela Jong, an attending Boardcertified internist, stated that repetitive lifting of more than 10 pounds at work exacerbated
appellant’s chronic neck, right shoulder and right elbow pain.
By decision dated March 26, 2008, the Office denied the recurrence of disability on the
grounds that the fact of injury was not established. It found that appellant did not provide
evidence corroborating her job duties or medical evidence supporting a recurrence of disability.
1

In a November 14, 2007 letter, the employing establishment advised appellant that it did not have work available
within her present restrictions.

2

Appellant requested an oral hearing, held on August 12, 2008. At the hearing, she
asserted that she bid for the automation job because her previous light-duty position, which
entailed ripping covers off magazines, was eliminated. The automation position was not to
require heavy lifting. However, during appellant’s work shift on September 1, 2007, she lifted
trays of mail weighing up to 20 pounds and pushed mail cages, worsening her neck, right arm
and right hand pain. She took sick leave the following day and sought medical attention.
Appellant returned to work from December 27, 2007 to March 14, 2008, then stopped work due
to disciplinary action. She then received disability retirement benefits through the Office of
Personnel Management (OPM).
Following the hearing, appellant submitted reports from September 2001 to 2002
diagnosing carpal tunnel syndrome and right shoulder pain. Dr. Jong treated her for degenerative
cervical disc disease, bilateral carpal tunnel syndrome, right elbow and shoulder pain from
March 2003 to June 2006. She noted work limitations on December 18, 2007 and prescribed
wrist splints and physical therapy.
In an April 9, 2008 report, Dr. Jong noted treating appellant for carpal tunnel syndrome
and degenerative joint disease of the neck and shoulder. She related appellant’s account of
lifting 20-pound mail trays at work on September 1, 2007, causing increased neck and right
shoulder pain. Dr. Jong diagnosed an exacerbation of thoracic and right shoulder muscle
spasms, cervical arthritis, and possible medial epicondylitis due to repetitive lifting and carrying
at work. She opined that appellant’s “right neck, shoulder, arm/elbow condition worsened as a
result of duties performed on September 1, 2007 to the point that she could not perform those
same duties without risking further serious injury.”
By decision dated and finalized October 2, 2008, an Office hearing representative
affirmed the March 26, 2008 decision. The hearing representative found that the evidence
demonstrated that appellant’s work activities on September 1, 2007 constituted an intervening
cause, breaking the legal chain of causation from the accepted injuries.2
LEGAL PRECEDENT
The Office’s implementing regulations define a recurrence of disability as “an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition which has resulted from a previous injury or illness without an intervening injury or
new exposure to the work environment that caused the illness.”3
When an appellant claims a recurrence of disability due to an accepted employment-related
injury, he has the burden of establishing by the weight of reliable, probative and substantial
evidence that the recurrence of disability is causally related to the original injury. This burden
includes the necessity of furnishing evidence from a qualified physician, who on the basis of a
2

The hearing representative noted that the medical evidence was insufficiently rationalized to establish a new
injury on September 1, 2007.
3

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3.b(a)(1)
(May 1997). See also Philip L. Barnes, 55 ECAB 426 (2004).

3

complete and accurate factual and medical history, concludes that the condition is causally related
to the employment injury. Moreover, sound medical reasoning must support the physician’s
conclusion.4 An award of compensation may not be based on surmise, conjecture or speculation or
on appellant’s unsupported belief of causal relation.5
ANALYSIS
The Office accepted that appellant sustained cervical disc displacement, aggravation of
right elbow tendinitis and an aggravation of right shoulder bursitis. Appellant claimed a
recurrence of total disability from September 1 to December 26, 2007 related to these injuries.
She thus has the burden of providing sufficient evidence, including rationalized medical
evidence, to establish the causal relationship asserted.6
Appellant attributed the claimed recurrence of disability to repetitive lifting and carrying
at work on September 1, 2007. In her November 23, 2007 claim form, a February 15, 2008
letter, and at the August 12, 2008 hearing, she attributed an increase of neck and upper extremity
pain to lifting and carrying trays of mail weighing up to 20 pounds.
The medical evidence also substantiates that work factors on September 1, 2007
constituted an intervening cause. In a September 24, 2007 report, Dr. Jong, an attending Boardcertified internist, stated that repetitive lifting at work exacerbated appellant’s chronic neck and
upper extremity pain. In an April 9, 2008 report, she opined that “duties performed on
September 1, 2007” caused increased neck and upper extremity pain and worsened the accepted
conditions.7 The exposure to new work factors on September 1, 2007 broke the legal chain of
causation stemming from the accepted upper extremity and neck injuries. The circumstances did
not involve a spontaneous change in the accepted conditions.8 For this reason, the Office’s
denial of the claimed recurrence of disability was proper under the law and the facts of the case.9
CONCLUSION
The Board finds that appellant has not established that she sustained a recurrence of
disability from September 1 to December 26, 2007 related to her accepted upper extremity and
cervical spine conditions.

4

Ricky S. Storms, 52 ECAB 349 (2001).

5

Alfredo Rodriguez, 47 ECAB 437 (1996).

6

Ricky S. Storms, supra note 4.

7

The Board’s decision in this appeal does not preclude appellant from clarifying a traumatic injury on
September 1, 2007.
8

Bryant F. Blackmon, 56 ECAB 752 (2005).

9

Beverly A. Spencer, 55 ECAB 501 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 2 and March 26, 2008 are affirmed.
Issued: August 14, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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