United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Laguna Niguel, CA, Employer
__________________________________________

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

Docket No. 14-2068
Issued: February 26, 2015

Case Submitted on the Record

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

JURISDICTION
On September 29, 2014 appellant filed a timely appeal from a September 2, 2014
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than
180 days elapsed from the last merit decision of March 12, 2014 and the filing of this appeal, the
Board lacks jurisdiction to review the merits of his claim pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board. In a decision dated January 22, 2001,
the Board set aside May 21 and September 29, 1998 OWCP decisions which found that appellant
1

5 U.S.C. § 8101 et seq.

had not established a recurrence of disability on June 12, 1997.2 The Board determined that the
medical evidence submitted was sufficient to warrant further development and instructed OWCP
to refer appellant for a second opinion examination. By decision dated November 6, 2002, the
Board affirmed June 1, 2001 and February 26, 2002 OWCP decisions which found that appellant
had not established an employment-related recurrence of disability beginning June 12, 1997.3
The facts and circumstances as set forth in the Board’s prior decisions are hereby incorporated
by reference.
On October 25, 2012 appellant filed a claim for a schedule award. By letter dated
January 4, 2013, he requested referral to a physician who performed impairment evaluations. In
response, OWCP advised appellant that he should submit a report from his attending physician
addressing whether he had reached maximum medical improvement. On January 31, 2013 at
appellant’s request OWCP authorized treatment by Dr. David Kahn, a chiropractor.4 On
June 19, 2013 OWCP, at appellant’s request, authorized treatment by Dr. John J. Betz, who
specializes in family and occupational medicine.
In an initial evaluation dated July 19, 2013, Dr. Betz diagnosed chronic lumbar pain after
a two-level lumbar discectomy. He referred appellant to Dr. Christopher Twombly, a Boardcertified physiatrist, for evaluation.
On August 1, 2013 Dr. Twombly diagnosed chronic mechanical low back pain, a history
of lumbar surgery, to rule out a worsening of disc pathology, and to rule out lumbar
radiculopathy or other neuropathic processes. He referred appellant for diagnostic studies.
In a report dated August 22, 2013, Dr. Twombly reviewed appellant’s magnetic
resonance imaging (MRI) scan study and diagnosed chronic mechanical low back pain,
multilevel spondylosis, multilevel facet arthropathy, status post lumbar discectomy, and bilateral
lower extremity pain and dysesthesias without evidence of nerve root compression or weakness.
Regarding whether he was permanent and stationary, the physician stated, “At this point, I would
recommend the above [six] visits of spinal decompression therapy. Once he is finished with the
spinal decompression, in my medical opinion, he will have reached maximum medical
improvement for any specific industrial injury.” Dr. Twombly discharged appellant from care.
In reports dated October 2, 9, and 16, 2013, Dr. Kahn evaluated appellant for an acute
exacerbation of his lumbar condition.

2

Docket No. 99-820 (issued January 22, 2001). On October 10, 1990 appellant, then a 39-year-old letter carrier,
filed an occupational disease claim alleging that he sustained a back condition causally related to factors of his
federal employment. OWCP accepted the claim for lumbar intervertebral disc disorder with myelopathy, a closed
dislocation of the lumbar vertebra, lumbar spinal stenosis and thoracic or lumbosacral neuritis or radiculitis.
Appellant sustained intermittent periods of disability until September 2, 1994, when he resumed modified
employment.
3

Docket No. 02-1270 (issued November 6, 2002).

4

In letters dated February 28 and April 25, 2013, OWCP again informed appellant that he needed to submit
medical evidence showing that he was at maximum medical improvement.

2

By decision dated March 12, 2014, OWCP denied appellant’s claim for a schedule award
on the grounds that the medical evidence did not establish that he had attained maximum medical
improvement. It noted that Dr. Twombly did not find he was permanent and stationary but rather
that he required decompression therapy.
On August 3, 3013 appellant requested authorization to change to a physician that he
found who was familiar with the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (A.M.A., Guides). By letter dated August 15, 2014,
OWCP advised him that Dr. Twombly was his attending physician and could address whether he
was permanent and stationary.
On August 22, 2014 appellant requested reconsideration. He asserted that Dr. Twombly
was only qualified to evaluate impairments using the fifth edition of the A.M.A., Guides.
Appellant maintained that Dr. Twombly did not want to treat him anymore and again requested
permission to see another physician. On August 26, 2014 he resubmitted Dr. Kahn’s
October 2, 9, and 16, 2013 chiropractic reports.
By decision dated September 2, 2014, OWCP denied appellant’s request for
reconsideration on the grounds that he did not raise an argument or submit evidence sufficient to
warrant reopening his case for further merit review under section 8128.
On appeal, appellant maintains that Dr. Twombly no longer wants to treat him and that
OWCP has not authorized another physician. He asserts that a prior attending physician found
that he was permanent and stationary in March 1998 and submits evidence of record in support
of his contention.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,5
OWCP regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.6 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.7 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.8

5

5 U.S.C. § 8101 et seq. Section 8128(a) of FECA provides that “[t]he Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.”
6

20 C.F.R. § 10.606(b)(3).

7

Id. at § 10.607(a).

8

Id. at § 10.608(b).

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The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.9 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.10
ANALYSIS
By decision dated March 12, 2014, OWCP denied appellant’s schedule award claim after
finding that he had not submitted medical evidence establishing that he had reached maximum
medical improvement. On August 22, 2014 appellant requested reconsideration. In its
September 2, 2014 decision, OWCP denied her request for reconsideration after finding that it
was insufficient to warrant reopening his case for further merit review under section 8128.
As noted above, the Board does not have jurisdiction over the March 12, 2014 OWCP
decision. The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim.
In his August 22, 2014 request for reconsideration, appellant did not identify a specific point of
law or show that it was erroneously applied or interpreted. He did not advance a new and
relevant legal argument. Appellant argued that Dr. Twombly could only evaluate the extent of
permanent impairment using the fifth edition of the A.M.A., Guides.11 The underlying issue is
whether he has reached maximum medical improvement.12 This is a medical issue which must
be addressed by relevant medical evidence.13 A claimant may be entitled to a merit review by
submitting pertinent new and relevant evidence, but appellant did not submit any pertinent new
and relevant medical evidence in this case. He submitted October 2, 9, and 16, 2013 chiropractic
reports from Dr. Kahn, who diagnosed an exacerbation of a spinal condition. However, these
reports duplicated reports already of record. Evidence which repeats or duplicates evidence
already in the case record has no evidentiary value and does not constitute a basis for reopening a
case.14
On appeal, appellant maintains that Dr. Twombly no longer wants to treat him and that
OWCP has not authorized another physician. The Board’s jurisdiction, however, is limited to
9

F.R., 58 ECAB 607 (2007); Arlesa Gibbs, 53 ECAB 204 (2001).

10

P.C., 58 ECAB 405 (2007); Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB
180 (2000).
11

Appellant further requested to change attending physicians; however, OWCP has not issued a final decision
with appeal rights on this issue. Consequently, the issue is not before the Board as the Board’s jurisdiction is limited
to reviewing final adverse decisions of OWCP issued under FECA. See 20 C.F.R. §§ 501.2(c) and 501.3(a),
respectively.
12

Maximum medical improvement refers to a date from which further recovery or deterioration is not anticipated,
although over time there may be some expected change. Only when an impairment has reached maximum medical
improvement can a permanent impairment rating be performed. See A.M.A., Guides 26; Patricia J. PenneyGuzman, 55 ECAB 757 (2004).
13

See Bobbie F. Cowart, 55 ECAB 746 (2004).

14

C.N., Docket No. 08-1569 (issued December 9, 2008); Richard Yadron, 57 ECAB 207 (2005).

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reviewing final adverse decisions of OWCP.15 OWCP has not issued a final decision on this
issue and thus it is not before the Board at this time. Appellant additionally argues that his prior
attending physician found that he was permanent and stationary in 1998, and cites evidence of
record in support of his allegation. The issue, however, is his condition at the time he filed his
schedule award claim in 2012.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). He did not show that OWCP erroneously applied or interpreted a specific
point of law, advance a relevant legal argument not previously considered by OWCP, or
constitute relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for further merit review
of his claim pursuant section 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the September 2, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 26, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

15

See supra note 12.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Louisville, KY, Employer
__________________________________________

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Appearances:
A.V. Conway, II, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1765
Issued: December 10, 2014

Case Submitted on the Record

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

JURISDICTION
On August 14, 2014 appellant, through her attorney, filed a timely appeal from the
February 28, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant received an $18,894.75 overpayment of
compensation; and (2) whether OWCP abused its discretion by refusing to waive recovery of the
overpayment.

1
2

5 U.S.C. §§ 8101-8193.

Appellant submitted additional evidence after OWCP’s February 28, 2014 decision, including evidence regarding
her finances, but the Board cannot consider such evidence for the first time on appeal. See 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On June 12, 2012 appellant, then a 39-year-old temporary relief carrier, sustained a mild
concussion with brief loss of consciousness (mild traumatic brain injury) during a motor vehicle
accident at work. She stopped work on June 12, 2012 and received compensation for temporary
total disability on the periodic rolls.
In a February 28, 2013 document, Geta J. Gordon, a human resources specialist at the
employing establishment, indicated that appellant was a temporary intermittent employee and
that she earned $14,514.49 in gross earnings and worked 1,112.22 hours in the year prior to her
June 12, 2012 work injury. An accompanying chart regarding appellant’s work year prior to
June 12, 2012 supported that she earned $14,514.49 by working 1,112.22 hours at a rate of
$13.05 per hour.3 Additional worksheets show that, for the period November 17, 2012 to May 3,
2013, appellant was paid compensation based on a pay rate of $36.64 per hour rather than the
correct pay rate of $13.05 per hour. She received $25,593.63 in compensation for the period
November 17, 2012 to May 3, 2013 rather than the correct amount of $6,698.88.
In a June 14, 2013 notice, OWCP advised appellant of its preliminary determination that
she received an $18,894.75 overpayment of compensation for the period November 17, 2012 to
May 3, 2013 because she was paid at an improper pay rate. It also made a preliminary
determination that she was not at fault in the creation of the overpayment in that she would not
have been expected to understand the complicated process of the calculation of her pay rate.
OWCP advised appellant that she could submit evidence challenging the fact, amount, or finding
of fault and request waiver of the overpayment. It informed her that she could submit additional
evidence in writing or at prerecoupment hearing, but that a prerecoupment hearing must be
requested within 30 days of the date of the written notice of the overpayment. OWCP requested
that appellant complete and return an enclosed financial information questionnaire (Form
OWCP-20) within 30 days even if she was not requesting waiver of the overpayment.
In an accompanying memorandum, OWCP provided further explanation of how appellant
was paid compensation based on an improper pay rate for the period November 17, 2012 to
May 3, 2013. It noted that, as a temporary relief carrier, appellant did not have a set schedule
and was not guaranteed a set number of hours per week. OWCP stated:
“[E]ach consecutive period claimed during November 17, 2012 through May 3,
2013 represented nonintermittent periods of wage loss for straight disability
which should not be processed based on intermittent loss of hours, but as
nonintermittent calendar days of disability. However, [OWCP] processed
compensation based on reported intermittent hours lost and on workdays versus
calendar days.”
***
“During the one year prior to the date of injury, the claimant’s actual gross
earnings excluding overtime was $14,514.49 which divided by 52, equates to
$279.12. This is the claimant’s correct weekly pay rate for compensation
3

The chart shows that appellant worked throughout the year prior to her June 12, 2012 work injury.

2

purposes. During the one year prior, the claimant worked a total of 1,112.22
hours. 1,112.22 divided by 52 weeks in a year results in 21.39 average hours per
week during one year prior to date of injury.
“It should be noted by reviewing the figures that, although the claimant earned
$14,514.49 for a period of working more than 11 months, she received
compensation almost double that amount for a period of less than 6 months of
wage loss. When the compensation was processed based on hours lost, the
claimant erroneously received compensation as though she earned approximately
$37.64 per hour in contrast to $13.05 per hour.”
Appellant submitted a Form OWCP-20 which she completed on July 3, 2013. She
indicated that she had $0.00 in monthly income, $2,186.69 in monthly expenses and $10,000.00
in checking account assets from an income tax refund. Appellant claimed three minor children
as dependents. She requested waiver of the overpayment and indicated that she wished to have a
prerecoupment hearing with the Branch of Hearings and Review.
During a telephonic prerecoupment hearing held on November 27, 2013, counsel argued
that appellant could not repay the overpayment debt due to financial hardship. Appellant
testified that she was employed as a temporary rural carrier prior to her June 12, 2012 work
injury. She discussed her work schedule noting that she began to receive an increased number of
work hours per week beginning in late 2011. Appellant confirmed that her rate of pay was
$13.05 per hour. She claimed that she had spent all of the $10,000.00 in assets she had reported
in the Form OWCP-20 on her necessary living expenses and that she was overdrawn at her bank.
Despite reporting that she had no income on the Form OWCP-20, appellant stated that she
received wage-loss compensation from OWCP on the periodic rolls. She indicated that she had
three dependent children, but that they had no income and that she received no support payments
from their father. OWCP hearing representative informed appellant that in order to support her
alleged change in financial status she should complete a new Form OWCP-20 showing her
present monthly income, monthly expenses and assets. She was advised that she needed to
provide financial documentation to verify the accuracy of the figures reported on the Form
OWCP-20. Appellant was provided 30 days to submit the requested information and
documentation.4
In a February 28, 2014 decision, OWCP hearing representative determined that appellant
received an $18,894.75 overpayment of compensation for the period November 17, 2012 to
May 3, 2013 because she was paid at an improper pay rate during his period. He noted that the
employing establishment provided information showing that appellant earned $14,514.49 in
gross earnings and worked 1,112.22 hours in the year prior to her June 12, 2012 work injury.
Appellant averaged 21.39 work hours per week and was paid at a rate of $13.05 per hour. The
hearing representative noted that, because appellant worked the entire year prior to her June 12,
2012 work injury, her pay rate should have been calculated under section 8114(d)(1) of FECA.
Dividing appellant’s $14,514.49 in gross earnings in the year prior to June 12, 2012 by 52 weeks
yielded a pay rate of $279.12 per week. However, during the period November 17, 2012 through
May 3, 2013, she actually received compensation at a higher provisional weekly pay rate. The
4

The record does not support that appellant submitted additional financial information within the allotted period
after the November 27, 2013 prerecoupment hearing.

3

hearing representative noted that appellant was effectively paid compensation based on a pay
rate of $36.64 per hour rather than the correct pay rate of $13.05 per hour. Appellant received
$25,593.63 in compensation for the period November 17, 2012 to May 3, 2013 rather than the
correct amount of $6,698.88, thereby creating an $18,894.75 overpayment. The hearing
representative found that appellant was not at fault in creating the overpayment but that the
overpayment was not subject to waiver. He determined that appellant failed to establish that
recovery of the overpayment would defeat the purpose of FECA because she had not shown both
that she needs substantially all of her current income to meet ordinary and necessary living
expenses and that her assets do not exceed the allowable resource base. OWCP hearing
representative indicated that appellant did not meet the second prong of this test because her
$10,000.00 in assets, as reported on a July 3, 2013 Form OWCP-20, exceeded the allowable
resource base. Appellant’s resource base was $9,920.00 because she had three dependents and
she was allowed $8,000.00 in assets for herself and one dependent plus $960.00 for each of her
two other dependents.
Although appellant alleged at the prerecoupment hearing that she had spent the
$10,000.00 in assets, she did not present sufficient evidence to support this assertion. The
hearing representative also found that appellant had not established that recovery of the
overpayment would be against equity and good conscience as she failed to establish that she
would experience severe financial hardship in attempting to repay the debt or that she
relinquished a valuable right or changed her position for the worse in reliance on the payment
which created the overpayment
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 his or her duty.5 Section 8129(a) of FECA provides, in pertinent part:
“When an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which an
individual is entitled.”6
Section 8105(a) of FECA provides: “If the disability is total, the United States shall pay
the employee during the disability monthly monetary compensation equal to 66 2/3 percent of his
monthly pay, which is known as his basic compensation for total disability.”7 Section 8101(4) of
FECA defines “monthly pay” for purposes of computing compensation benefits as follows:
“[T]he monthly pay at the time of injury, or the monthly pay at the time disability begins, or the
monthly pay at the time compensable disability recurs, if the recurrence begins more than six
months after the injured employee resumes regular full-time employment with the United States,

5

5 U.S.C. § 8102(a).

6

Id. at § 8129(a).

7

Id. at § 8105(a). Section 8110(b) of FECA provides that total disability compensation will equal three fourths of
an employee’s monthly pay when the employee has one or more dependents. 5 U.S.C. § 8110(b).

4

whichever is greater....”8 OWCP’s regulations define “disability” as “the incapacity, because of
an employment injury, to earn the wages the employee was receiving at the time of injury.”9
With respect to the calculation of appellant’s pay rate for compensation purposes, FECA
provides for different methods of computation of average annual earnings depending on whether
the employee worked in the employment in which he or she was injured substantially for the entire
year immediately preceding the injury and would have been afforded employment for substantially
a whole year, except for the injury.10 Section 8114(d)(1) of FECA provides:
“Average annual earnings are determined as follows:
(1) If the employee worked in the employment in which he was
employed at the time of injury during substantially the whole year
immediately preceding the injury and the employment was in a
position for which an annual rate of pay -(A) was fixed, the average annual earnings are the
rate of pay; or
(B) was not fixed, the average annual earnings are the
product obtained by multiplying his daily wage for the
particular employment, or the average thereof if the daily
wage has fluctuated, by 300 if he was employed on the
basis of a 6-day workweek, 280 if employed on the basis of
a 5 1/2-day week, and 260 if employed on the basis of a 5day week….”11
ANALYSIS -- ISSUE 1
The Board finds that appellant received an $18,894.75 overpayment of compensation.
OWCP correctly determined that she was paid at an improper higher pay rate for the period
November 17, 2012 to May 3, 2013. In determining that appellant received an $18,894.75
overpayment, OWCP’s calculation of her proper amount of compensation for the period
November 17, 2012 to May 3, 2013 was in accordance with the documentation of earnings
provided by the employing establishment. It properly noted that because appellant worked the
entire year prior to her June 12, 2012 work injury, her pay rate should have been calculated
under section 8114(d)(1) of FECA.12 Dividing appellant’s $14,514.49 in gross earnings in the
8

5 U.S.C. § 8101(4). In an occupational disease claim, the date of injury is the date of last exposure to the
employment factors which caused or aggravated the claimed condition. Patricia K. Cummings, 53 ECAB 623,
626 (2002). The Board has held that, if an employee has one recurrence of disability which meets the requirements
of 8101(4), any subsequent recurrence would also meet such requirements and would entitle the employee to a new
recurrence pay rate. Carolyn E. Sellers, 50 ECAB 393 (1999).
9

20 C.F.R. § 10.5(f).

10

5 U.S.C. § 8114(d)(1), (2).

11

Id. at § 8114(d)(1).

12

See supra notes 7 through 11.

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year prior to June 12, 2012 by 52 yielded a pay rate of $279.12 per week. However, during the
period November 17, 2012 through May 3, 2013, she actually received compensation at a higher
provisional weekly pay rate. OWCP hearing representative noted that appellant was effectively
paid compensation based on a pay rate of $36.64 per hour rather than the correct pay rate of
$13.05 per hour. Appellant has not provided evidence or argument disputing the $18,894.75
amount of overpayment.13 OWCP correctly determined that she received $25,593.63 in
compensation for the period November 17, 2012 to May 3, 2013 when she was only entitled to
receive $6,698.88. Therefore, it properly found that appellant received an $18,894.75
overpayment.
LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter
that rests within OWCP’s discretion pursuant to statutory guidelines.14 These statutory
guidelines are found in section 8129(b) of FECA which states: “Adjustment or recovery [of an
overpayment] by the United States may not be made when incorrect payment has been made to
an individual who is without fault and when adjustment or recovery would defeat the purpose of
this subchapter or would be against equity and good conscience.”15 If OWCP finds a claimant to
be without fault in the matter of an overpayment, then, in accordance with section 8129(b),
OWCP may only recover the overpayment if it determined that recovery of the overpayment
would neither defeat the purpose of FECA nor be against equity and good conscience.
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose
of FECA if recovery would cause hardship because the beneficiary needs substantially all of his
or her income (including compensation benefits) to meet current ordinary and necessary living
expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data provided by the Bureau of Labor Statistics.16 According to 20 C.F.R.
§ 10.437, recovery of an overpayment is considered to be against equity and good conscience
when an individual who received an overpayment would experience severe financial hardship
attempting to repay the debt and when an individual, in reliance on such payments or on notice
that such payments would be made, gives up a valuable right or changes his or her position for
the worse.17 To establish that a valuable right has been relinquished, it must be shown that the

13

It does not appear from the record that appellant has contested the amount of the overpayment as calculated by
OWCP.
14

See Robert Atchison, 41 ECAB 83, 87 (1989).

15

5 U.S.C. § 8129(b).

16

20 C.F.R. § 10.436. An individual is deemed to need substantially all of his or her monthly income to meet
current and ordinary living expenses if monthly income does not exceed monthly expenses by more than $50.00.
Assets must not exceed a resource base of $4,800.00 for an individual or $8,000.00 for an individual with a spouse
or dependent plus $960.00 for each additional dependent. See Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Initial Overpayment Actions, Chapter 6.200.6(a) (October 2004); B.F., Docket No. 13-785 (issued
September 20, 2013).
17

20 C.F.R. § 10.437(a), (b).

6

right was in fact valuable, that it cannot be regained and that the action was based chiefly or
solely in reliance on the payments or on the notice of payment.18
ANALYSIS -- ISSUE 2
Appellant has not established that recovery of the overpayment would defeat the purpose
of FECA because she has not shown both that she needs substantially all of her current income to
meet ordinary and necessary living expenses and that her assets do not exceed the allowable
resource base. OWCP properly found that appellant did not meet the second prong of this test
because her $10,000.00 in assets, as reported on a July 3, 2013 Form OWCP-20, exceeded the
allowable resource base. Appellant’s resource base was $9,920.00 because she had three
dependents and she was allowed $8,000.00 in assets for herself and one dependent plus $960.00
for each of her two other dependents.19 Before OWCP and on appeal, she alleged that she had
spent the $10,000.00 in assets, but she did not present sufficient evidence to support this
assertion.20
Because appellant has not met the second prong of the two-prong test of whether
recovery of the overpayment would defeat the purpose of FECA, it is not necessary for OWCP to
consider the first prong of the test, i.e., whether appellant needs substantially all of her current
income to meet ordinary and necessary living expenses. Appellant also has not established that
recovery of the overpayment would be against equity and good conscience because she has not
shown that she would experience severe financial hardship in attempting to repay the debt or that
she relinquished a valuable right or changed her position for the worse in reliance on the
payment which created the overpayment.21
Because appellant has failed to establish that recovery of the overpayment would defeat
the purpose of FECA or be against equity and good conscience, she has failed to show that
OWCP abused its discretion by refusing to waive the overpayment.
CONCLUSION
The Board finds that appellant received an $18,894.75 overpayment of compensation.
The Board further finds that OWCP did not abuse its discretion by refusing to waive recovery of
the overpayment.

18

Id. at § 10.437(b)(1).

19

See supra note 16.

20

Despite the assertion of counsel on appeal, the record does not support that appellant submitted additional
financial information within the allotted period after the November 27, 2013 prerecoupment hearing. Appellant
submitted additional evidence after OWCP’s February 28, 2014 decision, including evidence regarding her finances,
but the Board cannot consider such evidence for the first time on appeal. See supra note 2.
21

See 20 C.F.R. § 10.437; William J. Murphy, 41 ECAB 569, 571-72 (1989).

7

ORDER
IT IS HEREBY ORDERED THAT the February 28, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 10, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pittsburgh, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-1236
Issued: November 8, 2017

Case Submitted on the Record

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

JURISDICTION
On May 12, 2017 appellant, through counsel, filed a timely appeal from an April 24,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that her left knee
meniscal tears and chondromalacia were causally related to factors of her federal employment.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 5, 2015 appellant, then a 59-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that she developed chondromalacia of the condyle of the left
knee as well as a meniscal injury due to prolonged weight bearing on hard surfaces and
cumulative forces.
Appellant noted on July 6, 2015 while at home she felt a slight pull behind her left knee
after pulling some weeds. She also stepped off a 16-inch wall around the same time. Appellant
continued to experience the pulling sensation at work. On July 19, 2015 she had increased knee
pain while moving pallets of mail at work. By the end of her shift on July 19, 2015, appellant
experienced excruciating knee pain when she walked or turned. She sought medical attention on
July 21, 2015 and diagnostic testing showed a meniscal flap tear. Appellant noted working at the
employing establishment for more than 26 years and described her work duties as walking,
carrying, and pushing very heavy loads on a cement floor. She attributed her knee condition to
cumulative forces and prolonged weight bearing on the cement floor.
On July 23, 2015 appellant underwent a left knee magnetic resonance imaging (MRI)
scan which demonstrated a radial flap tear of the posterior horn of the medial meniscus of the left
knee, chondromalacia along the medial facet of the patella, and small left knee joint effusion
with an associated popliteal cyst.
Appellant underwent a left knee arthroscopy on August 6, 2015 with partial medial and
lateral meniscectomies, and synovectomy of the anterior medial and lateral compartments. She
also demonstrated microfracture of the medial femoral condyle.
In a letter dated April 21, 2016, OWCP requested additional factual and medical
information in support of appellant’s occupational disease claim. It afforded her 30 days for a
response.
The employing establishment responded on May 4, 2016 and agreed with appellant’s
description of her job duties. It noted that, as a mail handler, appellant moved equipment which
weighed over 500 pounds on an average of six to eight hours a day. She was required to pull and
push the equipment.
By decision dated July 8, 2016, OWCP denied appellant’s claim finding that she failed to
submit medical evidence establishing a causal relationship between her diagnosed condition and
her employment duties. It noted that the medical evidence of record did not address the issue of
causal relationship. On June 16, 2016 counsel requested an oral hearing from OWCP’s Branch
of Hearings and Review regarding this decision.
In a note dated July 21, 2015, Dr. Morgan Flaherty, a Board-certified internist, noted that
Prednisone did not help appellant’s left knee pain. He noted that, after appellant weeded and
gardened on July 4, 2015, her left knee became painful medially in the front. Dr. Flaherty
reported that appellant jumped off a two foot wall and was kneeling frequently. He also
mentioned that since appellant’s return to work she was pushing and pulling heavy objects which

2

made her left knee pain worse. Appellant’s knee was painful when ascending and descending
stairs. Dr. Flaherty indicated that appellant’s condition was either a meniscal tear or tendinitis.
Appellant testified during the oral hearing before an OWCP hearing representative held
on February 14, 2017. She noted that she did not realize her left knee condition was caused or
aggravated by her employment until after her surgery. Appellant described her left knee injury
over the July 4, 2015 weekend while gardening and pulling weeds. She felt a little pull in the
back of her knee. Appellant first experienced left knee pain in July 2015. She retired from the
employing establishment in July 2016 after 27 years as a mail handler. Appellant noted that her
work duties involved walking on a cement floor, and using pallet jacks to move pallets of trays.
She testified that the pallet jacks weighed approximately 300 pounds.
Following the oral hearing, appellant submitted additional factual information regarding
her work duties. She further described the pallet jacks as weighing over 700 pounds and having
a load capacity between 2,200 and 2,750 pounds. Appellant asserted that the pallet jacks were
manually moved across the workroom floor. She noted that on July 18 and 19, 2015 she was
moving pallet jacks approximately 50 feet and that the pallet jacks had a loaded weight of
approximately 900 pounds. Appellant alleged that she moved approximately 30 pallet jack loads
in a single work night. She described tuning and twisting to place the pallet jack in a confined
area.
In a note dated March 1, 2017, Dr. Spiro N. Papas, a Board-certified orthopedic surgeon,
opined that appellant had aggravated a preexisting left knee condition at work. He first
examined appellant on July 30, 2015 and noted her employment duties of working in a
warehouse at the employing establishment performing heavy lifting and pulling. Dr. Papas
indicated that appellant had difficulty performing her job duties in July 2015.
Dr. Flaherty completed a report on March 12, 2017. He opined that appellant’s initial
knee injury occurred around July 6, 2015 while performing strenuous tasks in her home garden.
On July 10, 2015 Dr. Flaherty noted mild knee pain. However, on July 21, 2015 appellant
reported that the pain had significantly worsened after returning to work on July 18, 2015.
Appellant also reported swelling in the left knee after July 18, 2015. On examination he found
tenderness of the left knee as opposed to the minimal discomfort she exhibited on July 10, 2015.
Dr. Flaherty listed appellant’s work duties on July 18 and 19, 2015 as operating pallet trucks
weighing over 2,000 pounds. He opined:
“Maneuvering such a load would require significant torque forces that in large
part originate from the musculature of the knee joints. A vulnerable knee joint
structure could become torn by the repeated application of such torque forces. It
is my professional opinion that the patient’s medical chronology supports the
claim that her initial left knee injury was more likely a strain injury to meniscal
structures while gardening that subsequently transformed into meniscal tears
while on duty maneuvering heavy pallet trucks.”
By decision dated April 24, 2017, OWCP’s hearing representative found that appellant
had established that the employment activities occurred as alleged, but denied appellant’s claim

3

as the medical evidence of record did not explain how work factors caused or contributed to the
diagnosed condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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 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
or specific condition for which compensation is claimed is causally related to the employment
injury.4
OWCP’s regulations define an occupational disease as a condition produced by the work
environment over a period longer than a single workday or shift.5 To establish that an injury was
sustained in the performance of duty in an occupational disease claim, a claimant must submit
the following: (1) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; (2) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; and (3) medical evidence establishing that the employment factors identified by the
claimant were the proximate cause of the condition for which compensation is claimed or, stated
differently, medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.6
A medical report is of limited probative value on a given medical question if it is
unsupported by medical rationale.7 Medical rationale includes a physician’s detailed opinion on
the issue of whether there is a causal relationship between the claimant’s diagnosed condition
and the implicated employment activity. The opinion of the physician must be based on a
complete factual and medical background of the claim, 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 specific employment activity or factors identified by the
claimant.8 The belief of a claimant that a condition was caused or aggravated by the
employment is insufficient to establish causal relationship.9

3

Id.

4

Kathryn Haggerty, 45 ECAB 383, 388 (1994).

5

20 C.F.R. § 10.5(q).

6

Victor J. Woodhams, 41 ECAB 345 (1989); see also J.H., Docket No. 16-1329 (issued June 23, 2017).

7

T.F., 58 ECAB 128 (2006).

8

A.D., 58 ECAB 149 (2006).

9

Lourdes Harris, 45 ECAB 545, 547 (1994).

4

ANALYSIS
The Board finds that appellant has failed to meet her burden of proof to establish left
knee meniscal injury and chondromalacia causally related to factors of her federal employment.
Appellant filed an occupational disease claim alleging that she developed her diagnosed
left knee conditions due to work activities on July 18 and 19, 2015. She reported her initial knee
pain developed on the holiday weekend of July 4, 2015 while gardening and that her pain was
then aggravated or accelerated by her work duties. OWCP accepted that appellant’s employment
duties included moving pallets of mail with a pallet jack for six to seven hours during a work
shift. The weight of a loaded pallet jack has variously been described in the record as over 500
pounds by the employing establishment and between 300 and 2,750 pounds by appellant.
Appellant submitted medical evidence from Drs. Papas and Flaherty in support of her
claimed work-related aggravation or acceleration of her left knee conditions. Dr. Papas
completed a note on March 1, 2017 opining that appellant’s work had aggravated her left knee
conditions. He provided a limited description of her job duties noting that she worked in a
warehouse at the employing establishment performing heavy lifting and pulling. While this
report includes an opinion on the causal relationship between appellant’s diagnosed conditions
and her employment, Dr. Papas failed to provide medical reasoning explaining how and why
appellant’s left knee conditions were related to her employment duties through aggravation or
acceleration. Given that appellant’s initial left knee injury occurred at home, further explanation
regarding the relationship between her condition and her employment is necessary. A mere
conclusion without the necessary rationale is insufficient to meet appellant’s burden of proof in
her occupational disease claim.10
In his March 12, 2017 report, Dr. Flaherty advised that appellant’s initial knee injury
occurred at home in the beginning of July 2017. He noted that appellant initially reported mild
left knee pain during examination on July 10, 2015. Appellant returned to work on July 18
and 19, 2015 and Dr. Flaherty described her work duties on those dates as operating pallet jacks
weighing over 2,000 pounds. Dr. Flaherty examined appellant on July 21, 2015 and found that
she had left knee tenderness as opposed to the minimal discomfort she exhibited on
July 10, 2015. He explained that moving 2,000-pound pallet jacks would place “significant
torque forces” on appellant’s knee joints. Dr. Flaherty noted, “A vulnerable knee joint structure
could become torn by the repeated application of such torque forces.” He concluded that
appellant’s prior knee strain was transformed into meniscal tears while maneuvering heavy pallet
trucks at work. While Dr. Flaherty opined that appellant’s left knee condition was aggravated or
accelerated by employment factors and provided some reasoning in support of his claim, the
Board finds that his report is insufficient to meet appellant’s burden of proof. Dr. Flaherty’s
report is based on the pallet jacks weighing 2,000 pounds rather than the 500 pounds confirmed
by the employing establishment. Furthermore, his report is speculative noting that a knee could
become torn by moving pallet jacks. An award of compensation may not be based on surmise,
conjecture, speculation, or upon appellant’s own belief that there is causal relationship between

10

D.R., Docket No. 16-0528 (issued August 24, 2016).

5

her claimed condition and her employment.11 The Board finds that the medical opinion evidence
is not based on a complete factual background and does not contain sufficient rationalized
medical opinion evidence to meet appellant’s burden of proof.
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 failed to meet her burden of proof to establish that her
left knee meniscal tears and chondromalacia were causally related to factors of her federal
employment.
ORDER
IT IS HEREBY ORDERED THAT the April 24, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 8, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11

R.W., Docket No. 15-0345 (issued September 20, 2016); Robert A. Boyle, 54 ECAB 381 (2003).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF AGRICULTURE, ANIMAL, )
PLANT, HEALTH INSPECTION SERVICE,
)
PLANT PROTECTION & QUARANTINE,
)
Robinsonville, NJ, Employer
)
__________________________________________ )
V.J., Appellant

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

Docket No. 11-351
Issued: October 19, 2011

Case Submitted on the Record

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

JURISDICTION
On November 30, 2010 appellant filed a timely appeal from an August 17, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) which granted a schedule
award. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has more than six percent permanent impairment of the
right lower extremity for which she received a schedule award.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On January 9, 2007 appellant, then a 39-year-old manager, injured her right forearm,
ankle and knee when she slipped on stairs while in travel status.2 OWCP accepted the claim for
closed fracture of the shaft of the radius and ulna, right knee contusion and right ankle sprain.
Appellant stopped on January 9, 2007.
Appellant was initially treated by Dr. Marc J. Lamb, a Board-certified orthopedic
surgeon, from January 10 to October 18, 2007, for right forearm and right ankle injuries
sustained in a slip and fall accident at work. Dr. Lamb treated her for persistent right knee and
ankle pain. He diagnosed right shoulder strain secondary to fall with myofascial symptoms, right
knee contusion with reexacerbation of previous chondromalacia patella and right ankle deltoid
ligament sprain.
On October 30, 2008 appellant filed a claim for a schedule award. She submitted an
August 6, 2008 report from Dr. Arthur Becan, a Board-certified orthopedic surgeon, who
provided an impairment rating under the fifth edition of the A.M.A., Guides.3 Dr. Becan advised
that appellant had 10 percent impairment of the right leg.4 He noted appellant was at maximum
medical improvement. In an April 16, 2009 report, an OWCP medical adviser concurred in the
impairment findings of Dr. Becan.
In a June 15, 2009 letter, OWCP requested that appellant submit an assessment of
permanent impairment in accordance with the sixth edition of the A.M.A., Guides5 which OWCP
began using effective May 1, 2009.
Dr. Becan noted that at the August 6, 2008 examination, appellant complained of daily
right knee and ankle pain with stiffness, swelling and instability. Appellant reported that her
activities of daily living were restricted due to her injuries and she had difficulty with self-care
and sleeping. Dr. Becan noted the QuickDash disability score was 86 and the lower extremity
activity scale (LEAS) was 11/18 for a disability of 39 percent of the right lower extremity.
Examination of the right knee revealed no effusion, tenderness along the peripatellar region, the
medial and lateral joint line and along the undersurface of the lateral patellar facet, no evidence
of medial or lateral laxity, negative anterior drawer sign and range of motion was diminished.
Gastrocnemius and quadriceps muscle strength testing was graded 4/5 on the right and
circumferential measurements of the gastrocnemius was 43 centimeters (cm) bilaterally. Right
ankle examination revealed no effusion, tenderness at the lateral malleolus, lateral ligaments,
anterior talofibular ligament and common peroneal tendons and range of motion for dorsiflexion
of 10 degrees, plantar flexion of 45 degrees, inversion of 25 degrees and eversion of 30 degrees.
2

The employing establishment did not dispute that appellant was in travel status and the time of the incident.

3

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

4

Dr. Becan also rated right arm impairment. As OWCP has not issued a decision addressing impairment of the
right arm, that matter is not presently before the Board in the instant appeal. See 20 C.F.R. § 501.2(c).
5

A.M.A., Guides (6th ed. 2008).

2

For the right leg, Dr. Becan diagnosed traumatic chondromalacia patella to the right knee, posttraumatic internal derangement of the right knee, chronic strain and sprain of the right ankle and
peroneal tendinopathy to the right ankle. He advised that appellant had six percent right leg
impairment under the sixth edition of the A.M.A., Guides. Appellant had a class 1 right knee
contusion with a grade C default impairment of one percent under Table 16-3, Knee Regional
Grid, page 509, of the A.M.A., Guides.
Applying the net adjustment formula at pages 521-22 of the A.M.A., Guides, Dr. Becan
noted that her class 1 impairment indicated a mild problem for the right knee. He found that the
grade pursuant to Table 16-6 for functional history was one (for LEAS score of 39 percent) for a
mild problem; the grade for physical examination at Table 16-7 was one, for a mild problem
(observed and palpatory); and the grade pursuant to Table 16-8 for clinical studies was zero.
Dr. Becan utilized the net adjustment formula of (GMFH-CDX) + (GMPE-DCX) + (GMCSCDX) or (1-1) + (1-1) + (0-1) to find a net adjustment of -1. He adjusted the impairment rating
to grade B, which also provides for one percent right leg impairment under the sixth edition of
the A.M.A., Guides. For right ankle peroneal tendinitis with mild motion deficit, Dr. Becan
advised that, in accordance with Chapter 16 of the sixth edition of the A.M.A., Guides appellant
had five percent impairment of the right leg. Under Table 16-2, Foot and Ankle Regional Grid,
appellant had a default impairment of class 1 right ankle peroneal tendinitis with a mild motion
deficit which yielded a grade C impairment of five percent pursuant to Table 16-2, page 501 of
the A.M.A., Guides. Applying the net adjustment formula at pages 521-22 of the A.M.A.,
Guides, Dr. Becan found that appellant had class 1 impairment, the rating utilized for a mild
problem for the right ankle. He found that the grade at Table 16-6 for functional history was one
(for LEAS score of 39 percent) for a mild problem; the grade for physical examination at Table
16-7 was two, for a moderate problem (observed and palpatory); and the grade at Table 16-8 for
clinical studies was zero. Dr. Becan utilized the net adjustment formula of (GMFH-CDX) +
(GMPE-DCX) + (GMCS-CDX) or (1-1) + (2-1) + (0-1) to find a net adjustment of zero. This
resulted in no change from the default impairment and Dr. Becan of five percent right leg
impairment. He combined the two impairments to total six percent of the right leg.
In an October 31, 2009 report, an OWCP medical adviser, reviewed the medical record
and agreed with Dr. Becan’s findings. He advised that maximum medical improvement was
reached on August 6, 2008, the date of examination by Dr. Becan. The medical adviser found
that Dr. Becan properly applied the sixth edition of the A.M.A., Guides to find six percent right
lower extremity impairment.
On April 27, 2010 appellant was granted a schedule award for six percent impairment of
the right lower extremity. The period of the award was August 6 to December 4, 2008.
On May 6, 2010 appellant requested a review of the written record and asserted that the
schedule award claim should have been developed under the fifth edition of the A.M.A., Guides.
In a decision dated August 17, 2010, an OWCP hearing representative affirmed the
April 27, 2010 decision.

3

LEGAL PRECEDENT
The schedule award provision of FECA6 and its implementing federal regulations,7 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.8 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.9
For decisions issued beginning May 1, 2009, the sixth edition of the A.M.A., Guides will be
used.10
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).11 Under the sixth edition, for lower extremity impairments the evaluator
identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by
grade modifiers based on Functional History (GMFH), Physical Examination (GMPE) and
Clinical Studies (GMCS).12 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) +
(GMCS-CDX).13 The grade modifiers are used on the net adjustment formula described above
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.14
ANALYSIS
The sixth edition of the A.M.A., Guides provides that lower extremity impairments be
classified by diagnosis which is then adjusted by grade modifiers according to the formula noted
above.15 Appellant’s accepted diagnosed conditions are for closed fracture of the shaft of the
radius and ulna, right knee contusion and right ankle sprain. On April 27, 2010 she was granted
a schedule award for six percent permanent impairment of the right lower extremity using the
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

10

FECA Bulletin No. 09-03 (issued March 15, 2009).

11

A.M.A., Guides, 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF): A
Contemporary Model of Disablement.
12

Id. at 494-531.

13

Id. at 521.

14

Id. at 497.

15

Supra notes 13-15.

4

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.
Using the procedure set forth in the A.M.A., Guides, Dr. Becan properly found that, in
accordance with Table 16-3, Knee Regional Grid,16 appellant’s impairing diagnosis was a right
knee contusion, which he rated as class 1, equal to one percent leg impairment. He applied the
modifiers for functional history, physical examination and clinical studies found in Tables 16-6,
16-7 and 16-8.17 Dr. Becan rated a functional history modifier of one, a physical examination
modifier of one and a modifier of zero for clinical studies. He applied the net adjustment
formula to find one percent right leg under the sixth edition of the A.M.A., Guides.18 For the
right ankle, in accordance with Table 16-2, Foot and Ankle Regional Grid,19 appellant’s
impairing diagnosis was right ankle peroneal tendinitis, with mild motion deficit, which he rated
as class 1, with a default rating of five percent impairment. Dr. Becan applied the modifiers for
functional history, physical examination and clinical studies found in Tables 16-6, 16-7 and
16-8.20 He rated a functional history modifier of one, a physical examination modifier of two
and a modifier of zero for clinical studies. Dr. Becan applied the net adjustment formula to rate
determine that there was no net adjustment which resulted in five percent right leg impairment
under the A.M.A., Guides.21 He noted a total combined lower extremity impairment of six
percent.
Dr. Becan properly explained his calculations under the sixth edition of the A.M.A.,
Guides. OWCP’s medical adviser, agreed with his analysis. The Board finds that the weight of
medical evidence establishes six percent permanent impairment of appellant’s right leg. 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 the sixth
edition of the A.M.A., Guides, showing any greater right leg impairment, the Board will affirmed
OWCP’s decision.
On appeal, appellant asserts that he has property right in a schedule award benefit under
the fifth edition of the A.M.A., Guides and a protected property interest cannot be deprived
without due process, citing Goldberg v. Kelly, 397 U.S. 254 (1970) and Mathews v. Eldridge,
424 U.S. 319 (1976). These cases hold only that a claimant who was in receipt of benefits (in

16

A.M.A., Guides, supra note 5 at 509.

17

Id. at 516-19.

18

Id.

19

Id. at 501.

20

Id. at 516-19.

21

Id.

5

Goldberg public assistance, and in Mathews Social Security benefits) could not have those
benefits terminated without procedural due process.22
In Harry D. Butler,23 the Board noted that Congress delegated authority to the Director
regarding the specific methods by which permanent impairment is to be rated. Pursuant to this
authority, the Director adopted the A.M.A., Guides as a uniform standard applicable to all
claimants and the Board has concurred in the adoption.24 On March 15, 2009 the Director
exercised authority to advise that as of May 1, 2009 all schedule award decisions of OWCP
should reflect use of the sixth edition of the A.M.A., Guides.25 The applicable date of the sixth
edition is as of the schedule award decision reached. It is not determined by either the date of
maximum medical improvement or when the claim for such award was filed.
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 six percent impairment of the right lower extremity,
for which she received a schedule award.

22

In Mathews the Court noted that the private interest that would be adversely affected by the erroneous
termination of benefits was likely to be less in a disabled worker than a welfare recipient and due process would not
require an evidentiary hearing.
23

43 ECAB 859 (1992).

24

Id. at 866.

25

FECA Bulletin No. 09-03 (March 15, 2009). The FECA Bulletin was incorporated in the Federal (FECA)
Procedure Manual, Part 2 -- Claims, Schedule Award & Permanent Disability Claims, Chapter 2.808.6(a)
(January 2010).

6

ORDER
IT IS HEREBY ORDERED THAT the August 17, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 19, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cooperstown, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Aaron B. Aumiller, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1097
Issued: January 18, 2019

Case Submitted on the Record

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

JURISDICTION

On May 2, 2018 appellant, through counsel, filed a timely appeal from a November 3, 2017
merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the

1

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

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from November 3, 2017, the date of OWCP’s last decision, was
May 2, 2018. Since using May 7, 2018, the date the appeal was received by the Clerk of the Appellate Boards, would
result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S. Postal
Service postmark is May 2, 2018, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a cervical spine
condition causally related to the accepted September 17, 2012 employment incident.
FACTUAL HISTORY
On September 24, 2012 appellant, then a 62-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that, on September 17, 2012, he injured his cervical spine in the
performance of duty when he swerved his delivery vehicle left then right to avoid debris and the
vehicle rolled over. He stopped work on September 17, 2012.
Immediately after the accident appellant was transported to a hospital emergency
department by ambulance. A hospital intake form completed by a nurse noted a history of injury
as “rolled car times four.”
A September 17, 2012 computerized tomography scan of the cervical spine showed a small
central spur or calcification at C3-4, a large central herniation at C4-5 with flattening of the thecal
sac, and bilateral uncovertebral joint spurs at C6-7.
In a report dated September 28, 2012, Dr. Timothy H. LaFont, an attending Board-certified
internist, noted appellant’s account of the September 17, 2012 motor vehicle accident in which he
swerved to avoid a large item that fell from the vehicle immediately in front of him, causing a tire
to separate. Appellant lost control and his truck rolled over 360 degrees. Dr. LaFont related
appellant’s symptoms of cervical and lumbar pain and stiffness, with radiculopathy into the right
buttock. He diagnosed hypertension, unchanged inflammatory polyarthritis, and unchanged
polyarthralgia. Dr. LaFont held appellant off work from September 21, 2012 for an indefinite
period.
By development letter dated October 9, 2012, OWCP advised appellant of the type of
medical and factual evidence needed to establish his claim, including a detailed description of the
September 17, 2012 employment incident, and a narrative report from his physician explaining
how and why that event would cause the claimed neck condition. It afforded appellant 30 days to
submit the necessary evidence.
In response, appellant submitted his statement in which he noted that, at the time of the
accident, he was driving home from work. The employing establishment confirmed that he was
in the performance of duty at the time of the September 17, 2012 accident as he “was on the most
direct route between the point of his last official duty” and his home.
A police accident report dated September 17, 2012, noted that appellant had lost control of
his vehicle while swerving around a box that fell from the vehicle in front of him. The passenger
3

5 U.S.C. § 8101 et seq.

2

side front tire caught on the shoulder, causing his vehicle to “flip onto its side.” In an amended
police accident report dated October 1, 2012, the accident diagram showed that appellant’s vehicle
swerved left over the shoulder of the road, swerved right, and was found inverted on its roof with
all four tires oriented directly upward.
In a state compensation claim form dated October 15, 2012, appellant asserted that on
September 17, 2012 an item of furniture flew out of a trailer in front of him. He swerved to avoid
it, “turned back onto road then rolled over.”
In a report dated October 31, 2012, Dr. LaFont opined that the September 17, 2012 motor
vehicle accident caused changes in the cervical spine demonstrated by a comparison of
December 28, 2005 and October 19, 2012 imaging studies.4 He continued to hold appellant off
from work.
By decision dated December 13, 2012, OWCP accepted that appellant was involved in an
employment-related motor vehicle accident on September 17, 2012, as alleged. It denied the
claim, however, as causal relationship had not been established.
On January 11, 2013 appellant requested a review of the written record by an OWCP
hearing representative. He submitted additional medical evidence.
In a report dated December 11, 2012, Dr. LaFont noted appellant’s continuing neck and
back pain. He opined in a report dated January 2, 2013, that the September 17, 2012 motor vehicle
accident exacerbated previously quiescent cervical disc disease and caused preexisting cervical
disc bulges to progress to herniated discs.
In a report dated January 3, 2013, Dr. Craig Montgomery, an attending Board-certified
neurosurgeon, noted that on September 17, 2012 appellant was driving his vehicle when debris fell
off a trailer in front of him, striking his windshield. Appellant swerved, overcorrected, “eventually
had a rollover of a Ford Explorer, and came to rest immediately.” He diagnosed a herniated disc
at C4-5, cervical spondylosis with myelopathy, lumbar spondylolisthesis, and lumbosacral
spondylosis. In response to the question as to whether the September 17, 2012 incident was
competent to cause the diagnosed conditions, Dr. Montgomery replied “yes.”
By decision dated April 22, 2013, an OWCP hearing representative affirmed OWCP’s
December 13, 2012 decision. The hearing representative found that appellant had established that
he was “involved in a September 17, 2012 motor vehicle accident in his work vehicle when he
swerved to avoid hitting an object.” However, appellant’s physicians had not provided sufficient
medical rationale to establish causal relationship between that incident and the diagnosed herniated
cervical disc or a worsening of preexisting degenerative cervical disc disease.

4

An October 19, 2012 magnetic resonance imaging (MRI) scan of the cervical spine showed a new small disc
protrusion at C2-3, a previously demonstrated C3-4 disc herniation that appeared smaller than on a December 28,
2005 scan, a previously demonstrated C4-5 disc herniation that appeared larger, and broad diffuse disc bulging at C5-6
similar to the previous study. An October 19, 2012 lumbar MRI scan showed disc desiccation at L2-3, L3-4, and
L4-5.

3

On September 24, 2013 appellant requested reconsideration.5 He asserted that his truck
had rolled over “450 degrees.” Appellant provided a state police accident report dated
September 22, 2012, which noted that appellant’s truck “flip[ped] onto its side.” He submitted
additional medical evidence.6
Dr. LaFont noted in reports dated March 11 and June 20, 2013 that appellant’s cervical
spine condition remained unchanged and that he had developed left-sided lumbar radiculopathy.7
In a letter dated July 5, 2013 he opined that on September 17, 2012, when appellant’s “motor
vehicle rolled over 360 degrees and an additional 90 degrees landing on its side it caused
[appellant] cervical, thoracic, and lumbar spine injuries. Even though he was wearing a seat belt,
his body was twisted and torqued in such a manner it caused axial load injuries to the spine.”
Dr. Montgomery provided reports dated June 12 and October 17, 2013, noting that
appellant’s herniated discs at C4-5, C5-6, C6-7, and cervical spondylosis with myelopathy
remained unchanged and required surgical intervention. On January 14, 2014 he performed
anterior cervical discectomies and fusions at C4-5, C5-6, and C6-7 with bone allograft and cage
stabilization. Dr. Montgomery noted in a March 27, 2014 report that appellant was progressing
well.
Appellant also submitted reports dated March 7, 2013 and February 4, 2014 chart notes
signed by Gabriella Canal, a physician assistant.
By decision dated July 16, 2014, OWCP denied appellant’s claim as the medical evidence
of record contained insufficient rationale to establish causal relationship. It found that, while the
factual evidence of record established a September 17, 2012 motor vehicle accident, the evidence
did not support a rollover, as the September 22, 2012 accident report noted only that his truck
flipped onto its side.
On July 15, 2015 appellant, through counsel, requested reconsideration. He contended that
the October 1, 2012 amended police report of the September 17, 2012 motor vehicle accident noted
appellant’s “wheels in the air,” that his truck had flipped onto its roof, supporting his description
of a rollover. Counsel provided three photographs dated September 18, 2012 of a Ford Explorer
XLT with the left windshield and left driver’s side of the roof smashed inward and generalized
body damage.
In reports dated December 30, 2013 and January 16, 2014, Dr. Montgomery opined that
appellant injured his cervical and lumbar spine in the September 27, 2012 motor vehicle accident.

5

In a letter dated April 17, 2014, appellant, through counsel, again requested reconsideration.

6
Appellant submitted a sacroiliac x-ray report dated February 2, 2004 which noted marked degeneration at L4-5.
A December 28, 2005 cervical MRI scan report noted small focal disc protrusions at C2-3, C3-4, C4-5, and broadbased disc bulges at C5-6 and C6-7.
7
Dr. Montgomery ordered nerve conduction velocity and electromyography studies performed on May 2, 2013,
which demonstrated mild right-sided C6-7 radiculopathy, and mild left C5-6 and C6-7 radiculopathy.

4

In a chart note dated October 30, 2014, he diagnosed cervical spondylosis with myelopathy, with
a good surgical result and increased function.
By decision dated October 16, 2015, OWCP denied appellant’s claim, finding that causal
relationship had not been established. It found that, as the police reports of record did not state
that his vehicle had rolled over, Dr. LaFont’s opinion was based on an inaccurate history of injury.
On October 14, 2016 appellant, through counsel, requested reconsideration. He contended
that the totality of the evidence established a September 17, 2012 motor vehicle accident of
sufficient severity to cause the diagnosed cervical disc herniations. Counsel argued that OWCP
had adopted an adversarial posture in the case by denying appellant’s claim based on minor
discrepancies as to how far appellant’s vehicle had rolled over.
In support of reconsideration, counsel submitted a September 20, 2012 vehicle appraisal
finding that appellant’s vehicle was a total loss due to “rollover” damage to the frame, all four
doors, and all exterior trims and finishes. He also provided copies of medical evidence previously
of record.
By decision dated January 9, 2017, OWCP denied appellant’s claim as the additional
evidence submitted did not provide a history of the September 17, 2012 injury or medical evidence
establishing causal relationship.
On August 8, 2017 appellant, through counsel, requested reconsideration. He contended
that an enclosed July 17, 2017 letter from Dr. LaFont was sufficient to establish that any of the
various degrees of vehicle rollover presented in the case record would have been competent to
cause the diagnosed cervical disc conditions.
In a letter dated July 17, 2017, Dr. LaFont opined that whether appellant’s vehicle “rolled
90 or 180 degrees, this most certainly could have directly been the cause of [appellant’s] injuries.
Any hyperflexion and compression of the spinal discs could have caused his disc to rupture at the
C4-5.”
By decision dated November 3, 2017, OWCP denied appellant’s traumatic injury claim as
the medical evidence of record was insufficient to establish causal relationship. It found
Dr. LaFont’s July 17, 2017 letter to be speculative and lacking an explanation as to how the
September 17, 2012 motor vehicle accident would cause the diagnosed C4-5 disc rupture.
LEGAL PRECEDENT
An employee seeking benefits under FECA8 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the

8

Supra note 3.

5

employment injury.9 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.10
In order to determine whether 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, which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred.11 The second component is whether the
employment incident caused a personal injury and generally can be established only by medical
evidence.12
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.13 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 employee.14
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.15
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP accepted that appellant was involved in an employment-related motor vehicle
accident on September 27, 2012. However, it found that the factual evidence of record failed to
support his account that his vehicle had “rolled over.” OWCP therefore found that medical
evidence of record based on a vehicle rollover as the cause of injury was fatally flawed.
Immediately after the accident in the hospital emergency room, a nurse noted a history of
injury as “rolled car times four.” However, it is not clear that appellant was the source of this
information. Appellant asserted in an October 15, 2012 form that, while swerving to avoid an item
that had fallen from the vehicle in front of him, he swerved, “turned back onto road then rolled
over.” On September 24, 2013 he asserted that his truck had rolled over “450 degrees.”
9

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

10

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

11

R.E., Docket No. 17-0547 (issued November 13, 2018); David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover,
51 ECAB 146 (1999).
12

R.E., id.

13

G.N., Docket No. 18-0403 (issued September 13, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

14

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

15

Dennis M. Mascarenas, 49 ECAB 215 (1997).

6

The police reports of record demonstrate that appellant’s vehicle was found resting on its
roof with all four tires in the air. While two preliminary reports indicated that the truck flipped on
its side, an amended October 1, 2012 report contains a clear diagram showing that appellant’s
vehicle came to rest on its roof. The precise nature of the vehicle’s motions before it came to rest,
such as the number of revolutions, are not specified. The Board notes, however, that the police
reports are consistent with appellant’s account of having “rolled over” during the September 27,
2012 employment incident. There is no question that the car came to rest on its roof. The Board
therefore finds that appellant has established that the accepted September 27, 2012 employment
incident involved a vehicle rollover in the manner that he had alleged.16 It must then be determined
if the medical evidence contains sufficient rationale to establish a causal relationship between the
accepted employment incident and the claimed cervical spine condition.17
Dr. Montgomery indicated on January 3, 2013 that the September 17, 2012 vehicle rollover
was competent to cause the diagnosed cervical spine conditions. He did so, however, by answering
“yes” to a form question without providing supporting medical rationale. The Board has held that
a physician’s opinion which is limited to checking a box on a form report or answering “yes” to a
prepared query is of limited probative value and insufficient to meet a claimant’s burden of proof
in establishing causal relationship.18
Dr. LaFont noted on September 28, 2012 that appellant’s truck had rolled over. He
explained in a July 5, 2013 letter that the rollover caused appellant’s body to twist and torque,
which resulted in “axial load injuries to the spine.” Dr. LaFont elaborated in his July 17, 2017
letter that either a 90 degree or 180 degree vehicle rollover would be competent to cause
“hyperflexion and compression of the spinal discs” sufficient to rupture the C4-5 disc.
Accordingly, the Board finds that Dr. LaFont provided an affirmative opinion on causal
relationship which describes the mechanism of injury, findings upon examination, and explained
how the motor vehicle accident produced mechanical forces which caused appellant’s diagnosed
conditions. The Board finds that Dr. LaFont’s opinion, while not sufficiently rationalized to meet
appellant’s burden of proof, is sufficient, given the absence of opposing medical evidence, to
require further development of the record.19
It is well established that proceedings under FECA are not adversarial in nature, and while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.20 It has an obligation to see that justice is done.21
16

R.E., supra note 11.

17

Id.

18

M.O., Docket No. 18-1056 (issued November 6, 2018). See Deborah L. Beatty, 54 ECAB 3234 (2003).

19

S.S., Docket No. 17-0332 (issued June 26, 2018). See also John J. Carlone, 41 ECAB 354 (1898); Horace
Langhorne, 29 ECAB 820 (1978).
20

S.S., id; see Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985); Dorothy L. Sidwell, 36 ECAB 699, 707 (1985);
Michael Gallo, 29 ECAB 159, 161 (1978).
21

S.S., supra note 19; William J. Cantrell, 34 ECAB 1233, 1237 (1983); Gertrude E. Evans, 26 ECAB 195 (1974).

7

The case will, therefore, be remanded to OWCP for further action consistent with this decision.
On remand, after such further development of the case record as OWCP deems necessary, it shall
issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the November 3, 2017 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further proceedings
consistent with this opinion.
Issued: January 18, 2019
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.N., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Danville, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Stephen D. Scavuzzo, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-1981
Issued: March 19, 2007

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 August 24, 2006 appellant, through his attorney, filed a timely appeal from a May 31,
2006 decision of a hearing representative of the Office of Workers’ Compensation Programs
affirming a wage-earning capacity decision and finding that he did not establish a recurrence of
disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant has established that the Office’s December 16, 2004 wageearning capacity determination should be modified.
FACTUAL HISTORY
This case is before the Board for the second time. On October 6, 2004 the Board
reversed a September 30, 2003 decision which found that appellant had not established a
recurrence of disability on October 19, 2002 warranting modification of the established loss of

wage-earning capacity (LWEC) determination.1 The Board noted that appellant stopped work on
October 19, 2001 and filed a claim requesting compensation for wage loss beginning that date.
In a decision dated November 15, 2001, the Office issued a retroactive LWEC determination.2
On August 19, 2002 appellant filed a recurrence of disability claim beginning October 19, 2001
causally related to his accepted employment injury. By decision dated October 2, 2002, the
Office found that he had not established a recurrence of disability on October 19, 2001 such that
he was unable to perform the position of mail processing equipment operator. On September 30,
2003 an Office hearing representative affirmed the October 2, 2002 decision on the grounds that
appellant had not shown that he sustained a recurrence of disability on October 19, 2001
warranting modification of the November 15, 2001 LWEC determination. On appeal, the Board
found that appellant had established that the November 15, 2001 decision should be modified as
it was erroneously issued. The Board noted that the Office had issued its November 15, 2001
retroactive LWEC determination after appellant stopped work and alleged that the work stoppage
occurred due to a change in his injury-related condition. The Board found that prior to issuing its
November 15, 2001 LWEC decision, the Office should have adjudicated whether he stopped
work due to an employment-related recurrence of disability. The Board thus concluded that
appellant had established modification of the November 15, 2001 LWEC. The findings of fact
and conclusions of law from the prior decision are hereby incorporated by reference.
By decision dated December 16, 2004, the Office reduced appellant’s compensation
effective March 19, 2001 based on its finding that his actual earnings as a mail processing
equipment operator fairly and reasonably represented his wage-earning capacity. The Office
noted that it had previously found in decisions dated October 2, 2002 and September 30, 2003
that he did not establish a recurrence of disability on October 19, 2001.
On January 10, 2005 appellant, through his representative, requested an oral hearing. On
March 24, 2006 he changed his request to a review of the written record.
In a decision dated May 31, 2006, the Office hearing representative affirmed the
December 16, 2004 decision. The hearing representative determined that appellant had not
submitted sufficient evidence to show either that his condition materially worsened on
October 19, 2001 or that the December 16, 2004 LWEC was erroneous. The hearing
representative further found that appellant had not established an employment-related recurrence
of disability on October 19, 2001.
LEGAL PRECEDENT
Once a loss of wage-earning capacity is determined, a modification of such a
determination is not warranted unless there is a material change in the nature and extent of the
injury-related condition, the employee has been retrained or otherwise vocationally rehabilitated

1

Docket No. 04-569 (issued October 6, 2004).

2

In a decision dated June 5, 2002, an Office hearing representative affirmed the November 15, 2001 wageearning capacity determination.

2

or the original determination was in fact erroneous.3 The burden of proof is on the party
attempting to show the award should be modified.4
Section 8115(a) of the Federal Employees’ Compensation Act provides that, in
determining compensation for partial disability, the wage-earning capacity of an employee is
determined by his actual earnings, if his actual earnings fairly and reasonably represent his wageearning capacity.5 Generally, wages actually earned are the best measure of a wage-earning
capacity and in the absence of evidence showing that they do not fairly and reasonably represent
the injured employee’s wage-earning capacity, must be accepted as such measure.6 In addition,
the Federal (FECA) Procedure Manual provides that the Office can make a retroactive wageearning capacity determination if appellant worked in the position for at least 60 days, the
position fairly and reasonably represented his wage-earning capacity and “the work stoppage did
not occur because of any change in his injury-related condition affecting the ability to work.”7
(Emphasis in the original.) The Board has concurred that the Office may perform a retroactive
wage-earning capacity determination in accordance with its procedures.8
In cases where appellant ceases work after reemployment and the Office has not issued a
formal LWEC determination, the Office’s procedure manual provides as follows:
“If no formal LWEC decision has been issued, the CE [claims examiner] must ask
the claimant to state his or her reasons for ceasing work and make a suitability
determination on the job in question. If the job is considered suitable, the CE then
advises the claimant that he or she has the burden of proving total disability …
after return to work and invite the claimant to submit a Form CA-2a.
“(1) If the reasons stated by the claimant amount to an argument for a recurrence,
the CE should develop and evaluate the medical and factual evidence upon receipt
of Form CA-2a….”9 (Emphasis in the original.)
ANALYSIS
In the previous appeal, the Board found that the Office erred in issuing a retroactive
LWEC determination prior to determining whether appellant stopped work due to a change in his
injury-related condition. The Board noted that the hearing representative properly determined
3

David L. Scott, 55 ECAB 330 (2004); Tamra McCauley, 51 ECAB 375 (2000).

4

Id.

5

5 U.S.C. § 8115(a); James Henderson, Jr., 51 ECAB 268 (2000).

6

Selden H. Swartz, 55 ECAB 272 ( 2004); Bette L. Kvetensky, 51 ECAB 346 (2000).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7 (May 1997).
8

See Tamra McCauley, supra note 3.

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(b) and 9(b)(1), respectively (December 1995).

3

that the issue was whether appellant had established modification of the wage-earning capacity
determination. The Board concluded, however, that, as the original LWEC was issued in error,
appellant had established that the LWEC should be modified. The Board thus reversed the
September 30, 2003 decision of a hearing representative.
By decision dated December 16, 2004, the Office again issued a retroactive LWEC
reducing appellant’s compensation effective March 19, 2001 based on its finding that his actual
earnings as a mail processing equipment operator fairly and reasonably represented his wageearning capacity. The Office noted that, by decision dated October 2, 2002 and September 30,
2003, it had found that he had not established a recurrence of disability on October 19, 2001. On
May 31, 2006 a hearing representative affirmed the December 16, 2004 decision. The hearing
representative also found that appellant had not established a recurrence of disability.
As discussed by the Board in the prior appeal, the Office’s procedure manual provides
that a retroactive LWEC determination may be made where the claimant worked in the position
for at least 60 days, the employment fairly and reasonably represents his wage-earning capacity
and the work stoppage did not occur because of any change in the claimant’s injury-related
condition.10 On December 16, 2004 the Office again issued a retroactive LWEC decision prior
to determining whether appellant’s work stoppage occurred because of a change in his condition
due to the accepted employment injury. While the Office noted that it had previously
adjudicated the issue of recurrence of disability in decisions dated October 2, 2002 and
September 30, 2003, the Board on prior appeal had reversed the September 30, 2003 hearing
representative’s decision which affirmed the October 2, 2002 decision. Consequently, at the
time it issued its December 16, 2004 LWEC determination, the Office had not adjudicated the
issue of whether appellant’s work stoppage occurred due to a recurrence of disability. The Board
has held that it is inappropriate to issue a retroactive wage-earning capacity determination when
there is a pending claim for compensation from the time of the work stoppage.11
Following the issuance of a formal LWEC determination, the Office’s procedure manual
directs the claims examiner to consider the criteria for modification when the claimant requests
compensation for total disability.12 The hearing representative, in his May 31, 2006 decision,
concluded that appellant had not established modification of the December 16, 2004 LWEC.
The Board finds, however, that the December 16, 2004 LWEC decision was improperly issued,
as appellant had stopped work and filed a notice of recurrence of disability which the Office had
not adjudicated. Consequently, appellant has established that the December 16, 2004 LWEC
determination should be modified.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7(e) (May 1997).
11

Juan A. DeJesus, 54 ECAB 721 (2003).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(b) (December 1995).

4

CONCLUSION
The Board finds that the Office improperly denied modification of its loss of wageearning capacity determination as it erroneously issued a retroactive LWEC decision after
appellant stopped work and filed a claim for compensation for total disability.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 31, 2006 is reversed.
Issued: March 19, 2007
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

5