United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.F., Appellant
and
SMITHSONIAN INSTITUTION, OFFICE OF
PUBLIC AFFAIRS, Washington, DC, Employer
__________________________________________

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

Docket No. 19-1019
Issued: November 6, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On April 9, 2019 appellant filed a timely appeal from a November 16, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP has met its burden of proof to reduce appellant’s compensation
benefits to zero based on her actual earnings as a full-time reference librarian.
FACTUAL HISTORY
Appellant, a 59-year-old former public affairs specialist, has an accepted traumatic injury
claim (Form CA-1) for multiple injuries that she sustained from a November 21, 1994 motor
vehicle accident that occurred while in the performance of duty. The claim was accepted for
1

5 U.S.C. § 8101 et seq.

adjustment disorder with depressed mood, calcifying tendinitis of the right shoulder, contusion of
back, shoulder, and upper arm, herpes zoster with other nervous system complications, and other
injury to liver. Appellant stopped work for intermittent periods. OWCP then paid her wage-loss
compensation on the periodic rolls beginning June 16, 2002.
On January 15, 2004 OWCP proposed to reduce appellant’s wage-loss compensation,
finding that the evidence of record established that she was no longer totally disabled from work.
It determined that she had the capacity to earn wages as a secondary school teacher at the rate of
$579.26 per week.
On March 12, 2004 OWCP finalized the proposed reduction of appellant’s wage-loss
compensation, effective March 21, 2004, based on her capacity to earn wages as a secondary
school teacher. It found that the position was medically and vocationally suitable for her and fairly
and reasonably represented her wage-earning capacity.
In a letter dated January 21, 2008, appellant informed OWCP that she had returned to work
full time and was earning a salary commensurate with the salary that she had earned at the time of
her November 21, 1994 employment injury.
In a July 17, 2008 Form CA-1032, appellant indicated that in December 2007 she began
employment as a reference librarian for the Library of Congress.
Appellant continued to receive medical treatment. On an August 23, 2016 Family and
Medical Leave Act health care provider certification form, Dr. William F. Postma, a Boardcertified orthopedic surgeon specializing in sports medicine, noted her medical condition of left
knee meniscal tear and arthrosis and status post arthroscopic surgery. He indicated that appellant
was unable to perform her employment duties of prolonged standing and walking. Dr. Postma
reported that she was disabled from work for the period July 1 to August 1, 2016. The form listed
appellant’s essential job functions as pushing book trucks, shelving and sorting materials,
computer work, movement between three buildings via tunnels (or outdoors), lifting and
transporting materials often oversized. There is no medical evidence in the record from 2017
to 2018.
In a September 10, 2018 letter, a workers’ compensation specialist for the employing
establishment informed OWCP that appellant was a Grade 9, Step 1 when she worked for the
employing establishment. She noted that, according to the 2018 GS pay schedule, the annual rate
of pay was $56,233.00. The workers’ compensation specialist indicated that, according to
appellant’s CA-1032 form, she was currently making $50,400.00 annually in her current position.
Thus, she concluded that appellant was at 89 percent wage-earning capacity.
By decision dated November 16, 2018, OWCP found that appellant had no loss of wageearning capacity (LWEC). It indicated that she had been employed as a reference librarian full
time commencing December 1, 2007 for a period of more than 60 days, with weekly wages of
$1,084.62. Effective September 10, 2018, the current pay rate for appellant’s date-of-injury job
and step when injured was $1,081.40 a week. When rounded to the nearest percentage point as
required by the formula used to determine wage-earning capacity, OWCP found that she had no
LWEC as her current actual earnings were essentially equal to the current pay rate of her date-of-

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injury position. It further determined that appellant’s reference librarian position met all the
requirements of 20 C.F.R. § 10.510 for a light-duty position.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of the compensation benefits.2 An injured employee who is either unable to return
to the position held at the time of injury or unable to earn equivalent wages, but who is not totally
disabled from all gainful employment, is considered partially disabled and is entitled to
compensation computed on loss of wage-earning capacity.3
Section 8115(a) of FECA provides that, in determining compensation for partial disability,
the wage-earning capacity of an employee is determined by his or her actual earnings if his or her
actual earnings fairly and reasonably represent his or her wage-earning capacity.4 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 wageearning capacity, must be accepted as such measure.5 Once OWCP determined that the actual
wages of a given position represent an employee’s wage-earning capacity, OWCP applies the
principles developed in the Albert C. Shadrick6 decision, now codified at 20 C.F.R. § 10.403, in
order to calculate the adjustment in the employee’s compensation. Compensation payments are
based on the wage-earning capacity determination, and OWCP’s finding remains undisturbed until
properly modified.7
A light-duty position that fairly and reasonably represents an employee’s ability to earn
wages may form the basis of an LWEC determination if that light-duty position is a classified
position to which the injured employee has been formally reassigned.8 The position must conform
to the established physical limitations of the injured employee; the employing establishment must
have a written position description outlining the duties and physical requirements; and the position
must correlate to the type of appointment held by the injured employee at the time of injury.9 If
2
M.K., Docket No. 17-0208 (issued April 17, 2018); H.N., Docket No. 09-1628 (issued August 19, 2010); T.F., 58
ECAB 128 (2006).
3

20 C.F.R. § 10.402 and 10.403; J.H., Docket No. 18-1319 (issued June 26, 2019); John D. Jackson, 55 ECAB
465 (2004).
4

5 U.S.C. § 8115(a); B.W., Docket No. 19-0207 (issued August 23, 2019); N.J., 59 ECAB 171 (2007).

5

B.G., Docket No. 17-1763 (issued April 9, 2018); Lottie M. Williams, 56 ECAB 302 (2005).

6

Albert C. Shadrick, 5 ECAB 376 (1953). The formula developed in the Shadrick decision has been codified at 20
C.F.R. § 10.403(d), which provides that the employee’s wage-earning capacity in terms of percentage is obtained by
dividing the employee’s actual earnings or the pay rate of the position selected by OWCP, by the current pay rate for
the job held at the time of the injury.
7

D.M., Docket No. 16-1527 (issued July 25, 2017); Katherine T. Kreger, 55 ECAB 633 (2004).

8

20 C.F.R. § 10.510.

9

Id.

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these circumstances are present, a determination may be made that the position constitutes regular
federal employment.10 In the absence of a light-duty position as described above, OWCP will
assume that the employee was engaged in noncompetitive, makeshift, or odd-lot employment.11
ANALYSIS
The Board finds that OWCP has not met its burden of proof to reduce appellant’s
compensation benefits to zero based on her actual earnings as a full-time reference librarian.
In December 2007, appellant began employment as a full-time reference librarian for the
Library of Congress. On November 16, 2018 OWCP issued a decision finding that the position
fairly and reasonably represented her wage-earning capacity as she had been performing the
position since December 1, 2007 and had demonstrated the ability to perform the duties of the
modified job for 60 days or more. It noted that the reference librarian position to which appellant
had returned met the criteria of 20 C.F.R. § 10.510 for a light-duty position.
The Board finds, however, that the current record does not establish that the reference
librarian position complied with OWCP’s regulations regarding light-duty job offers as established
in 20 C.F.R. § 10.510. Although the November 16, 2017 decision referenced an August 23, 2016
position description, the evidence of record does not contain such a written position description
outlining the duties and physical requirements of the offered position. Accordingly, the Board is
unable to determine from the evidence of record whether the physical requirements of the position
were within appellant’s medical restrictions.12 As the record is incomplete, the Board finds that
OWCP has not met its burden of proof to reduce her compensation benefits to zero.
CONCLUSION
The Board finds that OWCP has not met its burden of proof to reduce appellant’s
compensation benefits to zero based on her actual earnings as a full-time reference librarian.

10

Id.

11

Id.

12

See W.R., Docket No. 18-1782 (issued May 29, 2019).

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ORDER
IT IS HEREBY ORDERED THAT the November 16, 2018 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: November 6, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.E., Appellant
and
U.S. POSTAL SERVICE, PLANTATION
BRANCH POST OFFICE, Plantation, FL,
Employer
__________________________________________

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Appearances:
Joanne Wright, Representative for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0922
Issued: February 5, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On March 24, 2020 appellant, through her representative, filed a timely appeal from a
November 26, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).

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.

Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $73,689.81 for which she was without fault,
because she concurrently received FECA wage-loss compensation and Social Security
Administration (SSA) age-related retirement benefits for the period December 1, 2011 through
March 30, 2019 without an appropriate offset; (2) whether it properly denied waiver of recovery
of the overpayment; and (3) whether OWCP properly required recovery of the overpayment by
deducting $600.00 from appellant’s continuing compensation payments every 28 days.
FACTUAL HISTORY
On March 13, 1997 appellant, then a 52-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that date two dogs chased her, causing her to fall and suffer
injuries to her wrists and left knee, while in the performance of duty. OWCP accepted the claim
for bilateral wrist sprain, internal derangement/meniscus tear of the left knee, reflex sympathetic
dystrophy bilateral knees, right ankle closed fracture, post-traumatic stress disorder, and thoracic
or lumbosacral neuritis or radiculitis. Appellant stopped work on January 17, 1998 to undergo
OWCP-authorized arthroscopic surgery of her left knee. She returned to work for four hours per
day as of June 10, 1998 and eight hours per day with restrictions as of March 25, 1999. On
October 9, 2001 appellant accepted a modified letter carrier position for four hours a day with
restrictions. On December 25, 2004 she stopped work again and did not return. OWCP paid
appellant wage-loss compensation on the periodic compensation rolls. Appellant was
subsequently approved for disability retirement under the Federal Employees Retirement System
(FERS) by the Office of Personnel Management (OPM) by letter dated June 25, 2009. On
January 29, 2010 sheelected FECA wage-loss compensation benefits in lieu of OPM retirement
benefits.
On December 15, 2011, December 12, 2013, December 8, 2014, December 8, 2015,
December 12, 2016, December 16, 2017, and December 16, 2018 appellant completed EN1032
forms in which she indicated that she had not received any retirement benefits from SSA during
the past 15 months part of an annuity for federal service.
On January 29, 2019 OWCP forwarded a FERS/SSA dual benefits calculation transmittal
to SSA and requested that SSA provide information regarding appellant’s receipt of SSA agerelated benefits with and without FERS.

2

5 U.S.C. § 8101 et seq.

3

The Board notes that, following the November 26, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

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On March 11, 2019 OWCP received the March 7, 2019 completed FERS/SSA dual
benefits calculation transmittal from SSA. This form indicated appellant’s SSA benefit rates with
a FERS offset and without a FERS offset from December 2011 through December 2018.
Beginning December 2011, SSA rate with FERS was $1,292.40 and without FERS was $491.30.
Beginning December 2012, SSA rate with FERS was $1,314.30 and without FERS was $499.60.
Beginning December 2013, SSA rate with FERS was $1,334.00 and without FERS was $507.00.
Beginning December 2014 and beginning December 2015, SSA rate with FERS was $1,356.60
and without FERS was $515.60. Beginning December 2016, SSA rate with FERS was $1,360.60
and without FERS was $517.10. Beginning December 2017, SSA rate with FERS was $1,387.80
and without FERS was $527.40. Beginning December 2018, SSA rate with FERS was $1,426.60
and without FERS was $542.10.
On April 16, 2019 OWCP prepared a FERS offset calculation worksheet wherein it noted
the calculation of appellant’s SSA offset overpayment from December 1, 2011 through
March 30, 2019. The total overpayment was determined to be $73,689.81. OWCP found that
appellant received an overpayment of compensation in the amount of $9,666.02 for the period
December 1, 2011 through November 30, 2012; $9,803.26 for the period December 1, 2012
through November 30, 2013; $9,951.26 for the period December 1, 2013 through November 30,
2014; $10,119.73 for the period December 1, 2014 through November 30, 2015; $10,147.45 for
the period December 1, 2015 through November 30, 2016; $10,149.81 for the period December 1,
2016 through November 30, 2017; $10,353.16 for the period December 1, 2017 through
November 30, 2018; and $3,499.12 for the period December 1, 2018 through March 30, 2019.
SSA noted on the form that appellant had begun receiving age-related retirement benefits in
December 2011, prior to that time she was in receipt of disability benefits.
Based on information provided by SSA regarding the amount of appellant’s age-related
retirement benefits, which were attributable to federal service, OWCP adjusted appellant’s FECA
wage-loss compensation effective March 31, 2019.
On April 16, 2019 OWCP issued a preliminary determination, finding that an overpayment
of compensation in the amount of $73,689.81 had been created. It explained that the overpayment
occurred because appellant’s SSA age-related retirement benefits that she received from
December 1, 2011 through March 30, 2019 where partially based on credits earned while working
for the Federal Government, and that this portion of her SSA benefit constituted a prohibited dual
benefit. OWCP found appellant not at fault in the creation of the overpayment as she could not
have reasonably known that she was paid compensation incorrectly and forwarded an overpayment
action request form and an overpayment recovery questionnaire (Form OWCP-20). It requested
that she complete the questionnaire and provide supporting financial documentation, including
income tax returns, bank account statements, bills, and cancelled checks, pay slips, and any other
records to support her reported income and expenses. OWCP afforded appellant 30 days to
respond.
On May 6, 2019 appellant requested a telephonic prerecoupment hearing before OWCP’s
Branch of Hearings and Review regarding possible waiver of the overpayment. Appellant argued
that recovery of the overpayment would be against equity and good conscience as, over the last
eight years, she was put in the position of spending and committing funds in ways, which she
otherwise would not have done. She indicated that she would suffer financial hardship in trying

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to repay the huge overpayment and had no reasonable way of knowing that an overpayment had
occurred. In an attached Form OWCP-20, also completed on May 6, 2019, she reported her
household’s monthly income as $6,738.00, recurring monthly expenses as $4,903.71, assets as
$85,290.00. Copies of financials and billing statements were provided.
A telephonic hearing was held on September 12, 2019. Appellant’s representative argued
that appellant believed that her entitlement to SSA benefits were not part of an annuity, but based
on her disability. She also indicated that the annual SSA benefits reported on appellant’s SSA
forms 1099 during the years 2011 through 2019 were less than the rates reported by SSA on the
dual benefits transmittal form. Appellant’s representative submitted copies of appellant’s SSA
forms 1099 from 2011 through 2019 and included a summary of appellant’s SSA benefits as
reported on SSA forms 1099 yearly, and reduced to monthly amounts. She also summarized the
monthly rates reported by SSA in the SSA/FERS transmittal forms for SSA benefits with FERS.
The SSA 1099 forms reflected that: in 2011, appellant received SSA age-related retirement
benefits in the amount of $14,970.00 ($1,247.50 monthly); in 2012, she received $15,502.00
($1,291.83 monthly); in 2013, she received $15,766.80 ($1,313.90 monthly); in 2014, she received
$16,006.80 ($1,333.90 monthly); in 2015, she received $16,270.80 ($1,355.90 monthly); in 2016,
she received $16,270.80 ($1,355.90 monthly); in 2017, she received $16,320.00 ($1,360.00
monthly); in 2018, she received $16,644.00 ($1,387.00 monthly); and in 2019, she received
$17,118.20 ($1,426.60 monthly). The representative noted that appellant had adjusted her
expenditures based on the current amount of monthly benefits and requested that the preliminary
overpayment be rescinded. Appellant testified that both the assets and income amounts listed on
the Form OWCP-20 remained the same, but some of the enumerated monthly expenses increased.
The hearing representative explained that she needed more substantial documentation to consider
her request for waiver. Appellant was also offered the opportunity to submit a repayment plan.
The record was held open for 30 days for the submission of additional evidence.
In an October 1, 2019 statement, appellant reiterated that she believed she should be
granted waiver. She noted that she was unable to provide a payment plan as she did not believe
she could be penalized for an error that was not her fault. Appellant enclosed additional financial
documents regarding expenses.
By decision dated November 26, 2019, an OWCP hearing representative finalized
OWCP’s preliminary overpayment determination, finding that appellant received an overpayment
of $73,689.81 for the period December 1, 2011 through March 30, 2019. Regarding the amount
of the overpayment, the hearing representative related that she had reviewed the SSA 1099 forms
and other statements received and that this evidence was insufficient to show that the offset
information provided by SSA was incorrect. The hearing representative further found that she was
without fault in the creation of the overpayment, but denied waiver of recovery of the overpayment
because the evidence of record was insufficient to establish that recovery would defeat the purpose
of FECA or would be against equity and good conscience. OWCP required recovery of the
overpayment by deducting $600.00 from appellant’s continuing compensation payments every 28
days.

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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.4 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States.5
Section 10.421(d) of OWCP’s implementing regulations requires that OWCP reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
attributable to the employee’s federal service.6 FECA Bulletin No. 97-09 states that FECA
benefits have to be adjusted for the FERS portion of SSA benefits because the portion of the SSA
benefit earned as a federal employee is part of the FERS retirement package, and the receipt of
FECA benefits and federal retirement concurrently is a prohibited dual benefit.7
ANALYSIS -- ISSUE 1
The Board finds that fact of overpayment has been established.
The evidence of record indicates that, while appellant was receiving compensation for
wage-loss compensation benefits under FECA, she was also receiving SSA age-related retirement
benefits based upon her federal service. A claimant cannot receive both wage-loss compensation
under FECA and SSA age-related retirement benefits attributable to federal service for the same
period.8 The information provided by SSA established that appellant received SSA age-related
retirement benefits that were attributable to federal service during the period December 1, 2011
through March 30, 2019. Consequently, the fact of overpayment has been established.
The Board further finds, however, that this case is not in posture for decision with regard
to the amount of the overpayment.
To determine the amount of the overpayment, the portion of SSA’s benefits that were
attributable to federal service must be calculated. OWCP received a dual benefits calculation
transmittal from SSA with respect to the specific amount of SSA age-related retirement benefits
that were attributable to federal service. SSA provided its rate with FERS and without FERS for
specific periods from December 1, 2011 through March 30, 2019. OWCP provided its
calculations for each relevant period based on SSA’s worksheet and determined that she received
an overpayment in the amount of $73,689.81. However, appellant submitted SSA 1099 forms for
4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

6

20 C.F.R. § 10.421(d); see P.B., Docket No. 20-0862 (issued November 25, 2020); see S.M., Docket No. 17-1802
(issued August 20, 2018); L.J., 59 ECAB 264 (2007).
7

FECA Bulletin No. 97-09 (February 3, 1997); see P.B., id.; see also N.B., Docket No. 18-0795 (issued
January 4, 2019).
8

Supra note 7.

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the years 2011 and onward, which documented the amounts of SSA benefits appellant received
each year from SSA. The benefit amounts shown on the SSA 1099 forms differed from the
amounts shown on the SSA/FERS transmittal calculation forms. The hearing representative found
that such evidence was insufficient to show that the offset information provided by SSA was
incorrect. The hearing representative, however, offered no explanation regarding the discrepancy
in the benefit amounts SSA reported as received by appellant on the 1099 forms, which were less
than the rates reported by SSA for appellant’s SSA age-related benefits, which included FERS and
other SSA contributions.
The Board has previously explained that, if the record contains documentation evidencing
discrepancy in the amounts of SSA age-related benefits the claimant actually received, OWCP
must provide a clear explanation of the discrepancy.9 A claimant is entitled to an overpayment
decision that clearly explains how the amount was calculated.10 The Board finds that the
overpayment decision in this case does not provide such an explanation.11 In the present case,
SSA provided 1099 forms to appellant during the years in question which recorded amounts of
benefits paid, which differed from the benefit rates SSA reported to OWCP on the March 11, 2019
SSA/FERS dual benefits calculation transmittal. The Board finds that as OWCP did not attempt
to clarify the discrepancy and has not explained the discrepancy, it has not established the amount
of the overpayment in question.
On remand OWCP shall determine the exact amount of the overpayment of compensation.
It shall then issue a new preliminary overpayment determination, with an overpayment action
request form, a Form OWCP-20, and instructions for appellant to provide supporting financial
information. After this and such other further development as deemed necessary, OWCP shall
issue a de novo decision.12
CONCLUSION
The Board finds that fact of overpayment has been established. The Board further finds
that this case is not in posture for decision with regard to the amount of the overpayment.

9

See M.M., Docket No. 17-0560 (issued August 23, 2017).

10

L.B., Docket No. 19-1322 (issued January 27, 2020); A.J., Docket No. 18-1152 (issued April 1, 2019); J.W.,
Docket No. 15-1163 (issued January 13, 2016); see also O.R., 59 ECAB 432 (2008) (with respect to overpayment
decisions, OWCP must provide clear reasoning showing how the overpayment was calculated).
11

R.B., Docket No. 20-0022 (issued October 28, 2020); id.

12
As the case is not in posture for decision regarding the amount of overpayment, the issues of waiver and recovery
of the overpayment are rendered moot.

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ORDER
IT IS HEREBY ORDERED THAT the November 26, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further proceedings consistent with this decision of the Board.
Issued: February 5, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Albuquerque, NM, Employer
__________________________________________

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Appearances:
Gordon Reiselt, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-2353
Issued: June 16, 2010

Case Submitted on the Record

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

JURISDICTION
On September 23, 2009 appellant filed a timely appeal from the September 1, 2009 merit
decision of the Office of Workers’ Compensation Programs concerning an overpayment of
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to show that appellant
received a $3,689.38 overpayment of compensation; and (2) whether the Office abused its
discretion by refusing to waive recovery of the overpayment.
FACTUAL HISTORY
The Office accepted that on July 16, 1990 appellant, then a 50-year-old blind
rehabilitation specialist, sustained a work-related permanent aggravation of angina. Appellant
received compensation from the Office for periods of disability. He retired from the employing

establishment in 1991. In an “Option B Election Form” signed on December 6, 2004, appellant
elected to freeze all of his Option B life insurance at its value when he turned 65 years old.1
In a June 8, 2009 worksheet, Tim Cooper, an Office benefits technician, provided
calculations showing a $3,689.38 overpayment of compensation. He indicated that mistakes in
withholding life insurance premiums resulted in amounts of compensation being owed to
appellant and amounts which constituted overpayments of compensation to appellant.
Mr. Cooper asserted that appellant was owed $76.82 because between June 26, 1994 and
October 30, 2004 improper figures were used for basic life insurance premiums. Appellant was
owed $567.60 because between September 4, 2005 and December 20, 2008 the Office
improperly deducted basic life insurance premiums as he was over 65 years old during this
period. Mr. Cooper claimed that appellant received a $663.53 overpayment because basic life
insurance premiums were not deducted between June 1, 1991 and June 25, 1994. Appellant was
owed $879.84 because between September 4, 2005 and April 11, 2009 postretirement “0 percent
reduction premiums” were deducted instead of “50 percent reduction premiums.” He received a
$1,148.16 overpayment because a “postretirement under deduction of premiums” was made
between June 26, 1994 and June 15, 2002. Mr. Cooper asserted that appellant received a
$3,402.05 overpayment because “Optional B freeze payments” were not collected between
December 1, 2004 and September 3, 2005. To conclude that appellant received a $3,689.38
overpayment of compensation, Mr. Copper offset the amounts owed to appellant against the
amounts found to constitute overpayments of compensation.
In a July 31, 2009 notice, the Office advised appellant of its preliminary determination
that he received a $3,689.38 overpayment of compensation for the period June 1, 1991 to
June 25, 1994 “because Optional B freeze premiums were not being collected.” It also made a
preliminary determination that he was not at fault in the creation of the overpayment. The Office
advised appellant that he could submit evidence challenging the fact, amount, or finding of fault
and request waiver of the overpayment. It requested that appellant complete and return an
enclosed financial information questionnaire within 30 days even if he was not requesting waiver
of the overpayment.
In a September 1, 2009 decision, the Office determined that appellant received a
$3,689.38 overpayment of compensation and found that the overpayment was not subject to
waiver. It indicated that it was attaching a memorandum explaining this decision but no such
memorandum was attached.2

1

Appellant turned 65 years old on October 18, 2004.

2

Appellant did not submit a completed financial information questionnaire or any other evidence or argument
within the allotted time. The Office did not make a formal ruling regarding a payment plan for recovery of the
overpayment and this matter is not currently before the Board.

2

LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act3 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 duty.4 Section 8129(a) of the Act provides, in
pertinent part:
“When an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which an
individual is entitled.”5
Under the Federal Employees’ Group Life Insurance Program (FEGLI), most civilian
employees of the Federal Government are eligible to participate in basic life insurance and one
or more of the options.6 The coverage for basic life insurance is effective unless waived7 and the
premiums for basic and optional life coverage are withheld from the employee’s pay.8 While the
employee is receiving compensation under the Act, deductions for insurance are withheld from
the employee’s compensation.9 At separation from the employing establishment, the FEGLI
insurance will either terminate or be continued under “compensationer” status. If the
compensationer chooses to continue basic and optional life insurance coverage, the schedule of
deductions made will be used to withhold premiums from his or her compensation payments.10
When an underwithholding of life insurance premiums occurs, the entire amount is deemed an
overpayment of compensation because the Office must pay the full premium to the Office of
Personnel Management (OPM) upon discovery of the error.11
In determining a claimant’s entitlement to compensation benefits, the Office is required
by statute and regulation to make findings of fact.12 Office procedure further specifies that a
final decision of the Office must include findings of fact and provide clear reasoning which
3

5 U.S.C. §§ 8101-8193.

4

Id. at § 8102(a).

5

Id. at § 8129(a).

6

Id. at § 8702(a).

7

Id. at § 8702(b).

8

Id. at § 8707.

9

Id. at § 8707(b)(1).

10

Id. at § 8706(b).

11

5 U.S.C. § 8707(d); see Keith H. Mapes, 56 ECAB 130 (2004); James Lloyd Otte, 48 ECAB 334 (1997).

12

5 U.S.C. § 8124(a) provides: “The [Office] shall determine and make a finding of facts and make an award for
or against payment of compensation.” 20 C.F.R. § 10.126 provides in pertinent part that the final decision of the
Office “shall contain findings of fact and a statement of reasons.”

3

allows the claimant to “understand the precise defect of the claim and the kind of evidence which
would tend to overcome it.”13 These requirements are supported by Board precedent.14
ANALYSIS -- ISSUE 1
The Board finds that the Office did not meet its burden of proof to show that appellant
received a $3,689.38 overpayment of compensation.
In a July 31, 2009 notice, the Office advised appellant of its preliminary determination
that he received a $3,689.38 overpayment of compensation for the period June 1, 1991 to
June 25, 1994 “because Optional B freeze premiums were not being collected.” However, this
extremely brief explanation of the creation of the overpayment would not adequately apprise
appellant of how the Office believed that the claimed overpayment was created. Given the
Office’s failure to explain how the overpayment occurred, appellant would not understand the
precise defect of his claim and the kind of evidence which would tend to overcome it.
It appears that the Office’s calculation of the claimed overpayment was far more
complicated. The Office appears to have based its finding of an overpayment on a series of
mistakes made in deducting life insurance premiums, some of which resulted in overpayments to
appellant and some of which resulted to amounts being owed to appellant. The record contains a
June 8, 2009 worksheet in which Mr. Cooper, an Office benefits technician, provided
calculations ostensibly showing a $3,689.38 overpayment of compensation. There is no
indication that appellant was provided with this worksheet in connection with the Office’s
preliminary overpayment determination or that he otherwise was apprised of the reasoning
contained therein.15
For these reasons, the Office did not meet its burden of proof to show that appellant
received a $3,689.38 overpayment of compensation. As noted above, its burden of proof

13

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4 (July 1997).

14

See James D. Boller, Jr., 12 ECAB 45, 46 (1960).

15

Moreover, it should be noted that the bases for a number of the calculations contained in the worksheet are not
adequately explained or supported with documentation. For example, Mr. Copper claimed that appellant received a
$663.53 overpayment because basic life insurance premiums were not deducted between June 1, 1991 and
June 25, 1994. The record reveals that appellant retired in 1991 but it does not contain any documents showing
whether or when he elected to have basic life insurance coverage after his retirement. Mr. Cooper asserted that
appellant received a $1,148.16 overpayment because a “postretirement under deduction of premiums” was made
between June 26, 1994 and June 15, 2002. However, there is no explanation of the nature of these premiums or why
it was felt that they were not fully deducted for this period. Mr. Cooper stated that appellant received a $3,402.05
overpayment because “Optional B freeze payments” were not collected between December 1, 2004 and
September 3, 2005, but the Office’s preliminary overpayment determination indicated that this noncollection
occurred between June 1, 1991 and June 25, 1994.

4

includes providing a given claimant with fact findings and reasoning which would allow the
claimant to understand the precise nature of the determination being made by the Office.16
CONCLUSION
The Board finds that the Office did not meet its burden of proof to show that appellant
received a $3,689.38 overpayment of compensation.
ORDER
IT IS HEREBY ORDERED THAT the September 1, 2009 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: June 16, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

16

On appeal appellant argued that health problems prevented him from challenging the fact and amount of the
claimed overpayment and from providing evidence showing that it should be waived. The Board notes that the
evidence of record does not clearly show whether appellant was too ill to respond to the Office’s preliminary
overpayment determination. Because the Office has not established the existence of an overpayment, it is not
necessary to consider whether the Office abused its discretion by refusing to waive recovery of the overpayment.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF AGRICULTURE, FRESH
PRODUCTS BRANCH, Everett, MA, Employer
__________________________________________

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

Docket No. 12-589
Issued: September 14, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 24, 2012 appellant filed a timely appeal from the August 17, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which affirmed the
termination of her wage-loss compensation. Pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss compensation.
FACTUAL HISTORY
On November 1, 1996 appellant, an administrative support assistant, sustained a
traumatic injury in the performance of duty when her chair rolled out from beneath her as she
attempted to sit and she landed on the floor. OWCP accepted a contusion of the lumbosacral
1

5 U.S.C. § 8101 et seq.

spine, herniated disc at L4-5 and lumbar neuropathy. Appellant sustained a recurrence of
disability in 2006 and received compensation for temporary total disability on the periodic rolls.
A conflict in medical opinion arose on whether appellant continued to have residuals of
the accepted employment injury. Dr. Nabil W. Basta, a referral Board-certified orthopedic
surgeon, reviewed a statement of accepted facts, her medical records and multiple imaging and
electrodiagnostic studies. Although the records indicated a failed L4-5 laminectomy syndrome,
and although the records also reflected that nonsurgical approaches had not worked for appellant,
he could elicit no objective findings on physical examination to substantiate her subjective
complaints. Dr. Basta acknowledged that his findings were completely different from those of
the attending physician, who considered appellant permanently disabled and unable to perform
her duties as an administrative assistant. He recommended an evaluation by a neurologist or
neurosurgeon before a final assessment of whether she was totally and permanently disabled.
Dr. Joseph Abate, the attending Board-certified orthopedic surgeon, reviewed Dr. Basta’s
report and disagreed with his conclusion. He stated that appellant remained totally and
permanently disabled as a direct result of the November 1, 1996 employment injury and required
ongoing pain management. Dr. Abate also pointed out that Dr. Basta found a diminished left
ankle jerk, which was an objective finding.
To resolve this conflict, OWCP referred appellant, together with the case record and a
statement of accepted facts, to Dr. Paul S. Blachman, a Board-certified neurologist. On
September 23, 2010 Dr. Blachman reviewed the entire medical record, discussed appellant’s
complaints and described his findings on physical examination. There was significant evidence
of symptom magnification, especially with testing of straight leg raising. The only objective
finding was an irrelevant diminished left ankle jerk in comparison with the right. Dr. Blachman
explained that this was indicative of the initial disc herniation and did not in any way reflect
whether appellant had ongoing symptoms related to the November 1, 1996 employment injury.
It was an extraordinarily weak argument, he explained, to point out, as Dr. Abate did, that this
was an objective finding to correlate with appellant’s severe subjective symptoms. One would
expect the left ankle jerk to be diminished following disc herniation and surgery even in patients
who become entirely asymptomatic. Dr. Blachman stated that it was clear that Dr. Abate could
point to nothing else as an objective finding.
Dr. Blachman concluded that the effects of the 1996 employment injury had long ceased.
There were no consistent objective abnormalities. It was clear that appellant’s symptoms varied.
Multiple repeat imaging studies showed no anatomical cause for the ongoing symptoms.
Multiple electrophysiological studies showed no evidence of active nerve injury. Appellant’s
depression, Dr. Blachman noted, was not related to the work injury.
Dr. Blachman felt the effects of the work injury did not persist. He found that appellant’s
ongoing symptoms were unrelated to the 1996 employment injury or her later recurrence.
Dr. Blachman found no limitation on her activities resulting from the work injury. He explained,
however, that appellant did have certain work restrictions but was able to return to full-time
employment. Dr. Blachman later clarified that, as the effects of the 1996 employment injury had
long ceased, and taking into consideration only the conditions accepted by OWCP as being

2

caused by that injury, she was capable of performing the full duties of her date-of-injury job as
an administrative support assistant, as described in the statement of accepted facts.
Dr. Abate reviewed the last three pages of Dr. Blachman’s 45-page report and his work
capacity evaluation. He concluded that Dr. Blachman’s restrictions supported that appellant
remained totally and permanently disabled for any reasonable, gainful employment. Dr. Abate
added that Dr. Basta offered no opinion on appellant’s ability to return to work.
On January 13, 2011 OWCP terminated appellant’s wage-loss compensation. It found
that the opinion of the impartial medical specialist represented the weight of the medical
evidence with respect to the issue of injury-related disability.
In an August 17, 2011 decision, OWCP’s hearing representative affirmed the January 13,
2011 decision. He found that the weight of the medical evidence rested with the opinion of the
impartial medical specialist, who found that appellant was no longer disabled from work as a
result of the accepted work injury. The hearing representative further found that repetitive
statements from Dr. Abate stated that appellant was still disabled from work was insufficient to
shift the weight of the medical evidence.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of her duty.2 “Disability” means the incapacity,
because of an employment injury, to earn the wages the employee was receiving at the time of
injury.3
Once OWCP accepts a claim, it has the burden of proof to justify any termination of
compensation benefits.4 After it has determined that an employee has disability causally related
to federal employment, OWCP may not terminate compensation without establishing that the
disability has ceased or that it is no longer related to the employment.5
If there is disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall
make an examination.6 When there exist opposing medical reports of virtually equal weight and
rationale, and the case is referred to an impartial medical specialist for the purpose of resolving

2

Id. at § 8102(a).

3

20 C.F.R. § 10.5(f).

4

Harold S. McGough, 36 ECAB 332 (1984).

5

Vivien L. Minor, 37 ECAB 541 (1986); David Lee Dawley, 30 ECAB 530 (1979); Anna M. Blaine, 26 ECAB
351 (1975).
6

5 U.S.C. § 8123(a).

3

the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.7
ANALYSIS
There is a critical difference between an inability to return to work and an inability that is
attributable to an accepted employment injury. Evidence that appellant is unable to return to her
date-of-injury position does not, in itself, mean that she continues to suffer disability causally
related to the accepted medical conditions. There may be other reasons for her disability. As
OWCP pays wage-loss benefits only for disability caused by the accepted medical conditions,
the mere fact that appellant has restrictions or incapacity may be immaterial to the termination of
those benefits.
OWCP accepted that appellant’s November 1, 1996 employment injury caused a
contusion of the lumbosacral spine, a herniated disc at L4-5 and lumbar neuropathy, for which
she had surgery and for which she received wage-loss compensation. The question presented by
OWCP’s termination of wage-loss compensation is not whether she still has restrictions or
remains unable to work, but whether the accepted medical conditions -- the contusion, the
herniated disc, the neuropathy, the effects of her surgery -- continue to cause disability for work.
Dr. Basta, OWCP’s referral orthopedic surgeon, could elicit no objective findings on
physical examination to substantiate appellant’s subjective complaints. Although he deferred an
opinion on whether she might be totally and permanently disabled, the absence of any objective
physical manifestation of injury supported that the accepted medical conditions no longer caused
disability for work.
Dr. Abate, the attending orthopedic surgeon, disagreed with Dr. Basta’s finding. He
found that appellant remained totally and permanently disabled as a direct result of the 1996
employment injury. This disagreement created a conflict under section 8123(a) of FECA
requiring referral to an impartial medical specialist.
OWCP referred appellant to Dr. Blachman, a Board-certified neurologist, to resolve the
conflict. It provided Dr. Blachman with appellant’s medical record and a statement of accepted
facts so he could offer a well-informed opinion. Dr. Blachman found significant evidence of
symptom magnification and only one objective finding: a diminished left ankle jerk that gave no
indication whether appellant had any ongoing symptoms of the 1996 employment injury.
It was Dr. Blachman’s opinion that the effects of the 1996 employment injury had long
ceased. He supported that opinion with sound medical reasoning: the record showed no
consistent objective abnormalities; appellant’s complaints were variable; and multiple repeat
imaging studies showed no anatomical cause for her ongoing symptoms; multiple
electrophysiological studies showed no evidence of active nerve injury. Although he imposed
work restrictions, Dr. Blachman made it clear that appellant was capable of performing the full
duties of her date-of-injury job as an administrative support assistant insofar as the accepted
medical conditions were concerned, which is the relevant issue.
7

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

4

The Board finds that Dr. Blachman’s opinion is based on a proper foundation and is
sufficiently well reasoned that it must be accorded special weight in resolving the conflict
between Dr. Basta and Dr. Abate. Additional reports by Dr. Abate supporting that appellant
remained totally and permanently disabled as a result of the 1996 employment injury, as he
reported when the conflict arose, are insufficient to shift the weight of the medical opinion
evidence. As the weight of that evidence establishes that appellant is no longer disabled for
work as a result of the accepted medical conditions, the Board finds that OWCP has met its
burden of proof to justify the termination of her wage-loss compensation. The Board will
therefore affirm OWCP’s August 17, 2011 decision.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s wage-loss compensation.
ORDER
IT IS HEREBY ORDERED THAT the August 17, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 14, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hopatcong, NJ, Employer
__________________________________________

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

Docket No. 07-2275
Issued: June 3, 2008

Case Submitted on the Record

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

JURISDICTION
On September 5, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated October 17, 2006, with respect to a schedule
award. The record also contains an August 8, 2007 decision denying merit review of the claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUES
The issues are: (1) whether appellant has more than a 13 percent impairment to her left
leg; and (2) whether the Office properly denied reconsideration of an October 17, 2006 decision.
FACTUAL HISTORY
The Office accepted that appellant sustained a lumbosacral sprain in the performance of
duty on May 14, 1999.
Appellant underwent lumbar surgeries on January 30 and
February 6, 2001. In a report dated October 12, 2001, Dr. David Weiss, an osteopath, opined
that appellant had a 10 percent left leg permanent impairment. On April 18, 2003 appellant

underwent a thoracic laminectomy. An Office medical adviser opined in an April 22, 2004
report that appellant had not reached maximum medical improvement as she remained under
active treatment.
Appellant was referred to Dr. David Rubinfeld, an orthopedic surgeon, for a second
opinion evaluation. In a report dated May 28, 2005, Dr. Rubinfeld provided a history and results
on examination. He noted that appellant had complaints of pain in both legs with intermittent
numbness in the left foot and toes. Dr. Rubinfeld opined that appellant did not have a continuing
orthopedic condition and had no permanent impairment.
By report dated September 15, 2005, an Office medical adviser opined that appellant had
a five percent leg impairment due to sensory deficit in the L5 nerve root. The Office then
referred appellant for evaluation by Dr. Robert Petrucelli, an orthopedic surgeon.1 In a report
dated February 1, 2006, Dr. Petrucelli provided a history, results on examination and review of
medical records. With respect to permanent impairment, he identified Table 15-18 of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides). Under Table 15-18, sensory deficit in the L5 nerve root is rated a maximum of
5 percent leg impairment, with a maximum 37 percent for motor deficit. Dr. Petrucelli graded
the sensory impairment at 80 percent of the maximum (4 percent) and the motor deficit at
25 percent of the maximum or (9 percent). He then combined the 4 percent and 9 percent,
finding a total 13 percent whole person impairment.
In a report dated April 6, 2006, an Office medical adviser opined that appellant had a
13 percent left leg impairment. The medical adviser noted that Dr. Petrucelli had incorrectly
referred to a whole person impairment, rather than a leg impairment. The date of maximum
medical improvement was reported as February 1, 2006.
By decision dated April 12, 2006, the Office issued a schedule award for a 13 percent
permanent impairment to the left leg. The period of the award was 37.44 weeks from
February 1, 2006. Appellant requested a hearing before an Office hearing representative, which
was held on August 16, 2006. In a decision dated October 17, 2006, the hearing representative
affirmed the April 12, 2006 schedule award decision.
By letter dated July 30, 2007, appellant’s representative stated that he was requesting
reconsideration. He indicated that he was submitting a May 7, 2007 report from Dr. Weiss and
requesting that the schedule award be increased in accord with the opinion of Dr. Weiss. In a
report dated May 7, 2007, Dr. Weiss provided results on current examination. He opined that
based on the A.M.A., Guides appellant had a 30 percent left leg impairment and 3 percent right
leg impairment.
In a decision dated August 8, 2007, the Office found that the July 30, 2007 letter
requesting reconsideration was insufficient to warrant further merit review as no new and
relevant evidence was submitted. The Office also noted “alternatively” the issue of an increased
schedule award, stating that the evidence from Dr. Weiss “appears to support only a claim of
‘increased impairment at a later date’ which constitutes, in and of itself, a request for an
1

The referral letter stated that there was a conflict in the medical evidence.

2

additional award. This does constitute a bar to your requesting reconsideration in the matter of
an amended award.” The Office advised appellant that he could claim an additional award by
submitting a Form CA-7 claim for compensation.
LEGAL PRECEDENT -- ISSUE 1
Section 8107 of the Federal Employees’ Compensation Act provides that, if there is
permanent disability involving the loss or loss of use of a member or function of the body, the
claimant is entitled to a schedule award for the permanent impairment of the scheduled member
or function.2 Neither the Act nor the regulations specify the manner in which the percentage of
impairment for a schedule award shall be determined. For consistent results and to ensure equal
justice for all claimants, the Office has adopted the A.M.A., Guides as the uniform standard
applicable to all claimants.3
ANALYSIS -- ISSUE 1
The Office referred appellant for a second opinion examination by Dr. Rubinfeld, who
found that appellant had no continuing orthopedic condition and no employment-related
permanent impairment. An Office medical adviser determined that appellant had a five percent
left leg impairment, based on an L5 nerve root sensory deficit.
Appellant was referred to Dr. Petrucelli. Although the referral letter stated that there was
a conflict in the medical evidence, the Broad notes that there was no conflict under 5 U.S.C.
§ 8123(a) as no attending physician had offered an opinion.4 The referral to Dr. Petrucelli was a
second opinion referral and his report may constitute the weight of the medical evidence.5
Dr. Petrucelli described a permanent impairment to the left leg based on L5 sensory and
motor deficit. Under Table 15-18 of the A.M.A., Guides the maximum impairment for L5
sensory deficit is 5 percent, while the maximum for loss of strength is 37 percent.6 Dr. Petrucelli
graded the sensory impairment as 80 percent of the maximum or a 4 percent leg impairment and
the motor deficit as 25 percent of the maximum or 9 percent. Appellant argues that
Dr. Petrucelli cannot be the weight of the evidence because he provided a whole person
impairment. But Dr. Petrucelli did properly identify a leg impairment and the appropriate tables
used to calculate the extent of left leg impairment. He incorrectly described combining the 9 and
2

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
3

A. George Lampo, 45 ECAB 441 (1994).

4

5 U.S.C. § 8123(a) provides if there is a disagreement between an attending physician and a physician making
an examination for the Office, a third physician is selected to resolve the conflict.
5

Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

6

A.M.A., Guides 424, Table 15-18. While this table is located in the section discussing impairments to the spine,
which is not a scheduled member of the body, Tables 15-15 through 15-18 are for spinal nerve root impairments
affecting the arms or legs.

3

4 percent leg impairments as a 13 percent “whole person” impairment rather than a leg
impairment. However, Dr. Petrucelli’s report clearly describes the impairment and the method
used to calculate the degree of leg impairment. The Office medical adviser confirmed that
combining a 9 percent loss of strength with a 4 percent sensory deficit or pain was a 13 percent
leg impairment.
Based on the probative medical evidence of record, the Office properly determined that
appellant had a 13 percent leg impairment. There was no probative medical evidence of a
greater leg impairment. The Board notes that the number of weeks of compensation for a schedule
award is determined by the compensation schedule at 5 U.S.C. § 8107(c). For complete loss of use
of the leg, the maximum number of weeks of compensation is 288 weeks. Since appellant’s
impairment was 13 percent, he is entitled to 13 percent of 288 weeks or 37.44 weeks of
compensation. It is well established that the period covered by a schedule award commences on
the date that the employee reaches maximum medical improvement from residuals of the
employment injury.7 In this case, the Office medical adviser properly concluded that the date of
maximum medical improvement was the date of examination by Dr. Petrucelli. The award
therefore properly runs for 37.44 weeks commencing on February 1, 2006.
LEGAL PRECEDENT -- ISSUE 2
As the Board explained in Linda T. Brown,8 a claimant may seek a schedule award if the
evidence establishes that she sustained an impairment causally related to the employment injury.
Even if the term “reconsideration” is used, when a claimant is not attempting to show error in the
prior schedule award decision and submits medical evidence regarding a permanent impairment
at a date subsequent to the prior schedule award decision, it should be considered a claim for an
increased schedule award. The Office should issue a merit decision on the schedule award
claim, rather than adjudicate an application for reconsideration.9
ANALYSIS -- ISSUE 2
The August 8, 2007 Office decision appeared to acknowledge that appellant was claiming
an increased schedule award based on the May 7, 2007 report from Dr. Weiss. The Office still
issued a decision denying reconsideration and advised appellant to submit an additional claim for
compensation. When the Office receives evidence that clearly indicates a claimant is seeking an
increased schedule award based on new evidence, it should consider the evidence and issue a merit
decision in accord with Board precedent. The case will be remanded to the Office for a merit
decision with respect to an increased schedule award.

7

Albert Valverde, 36 ECAB 233, 237 (1984).

8

51 ECAB 115 (1999). In Brown, the Office issued a 1995 decision denying entitlement to a schedule award as
no ratable impairment was established. Appellant requested that the Office reconsider in 1997, submitting a current
report with an opinion that she had a 25 percent permanent impairment to the arms and legs. The Office determined
that appellant submitted an untimely request for reconsideration that did not show clear evidence of error. The
Board remanded the case for a merit decision.
9

Id.; see also Paul R. Reedy, 45 ECAB 488 (1994).

4

CONCLUSION
Appellant has not established more than a 13 percent left leg impairment. Since she
submitted evidence regarding an increased schedule award, the case is remanded to the Office
for a merit decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 17, 2006 is affirmed. The decision dated August 8, 2007
is set aside and the case remanded for further action consistent with this decision of the Board.
Issued: June 3, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


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

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

Docket No. 14-454
Issued: June 23, 2014

Case Submitted on the Record

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

JURISDICTION
On December 23, 2013 appellant filed a timely appeal of an August 26, 2013 merit
decision and a December 11, 2013 nonmerit 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.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish an
occupational disease in the performance of duty; and (2) whether OWCP properly denied
appellant’s request for reconsideration.
FACTUAL HISTORY
On March 12, 2013 appellant, then a 60-year-old letter carrier, filed a Form CA-2,
occupational disease claim, alleging that she developed right knee pain as a result of performing
1

5 U.S.C. §§ 8101-8193.

her work duties. She first became aware of her condition and realized that it was causally related
to her employment on October 23, 2012.
In a statement dated March 12, 2013, appellant indicated that her job duties included
casing mail, bending, stooping, pushing and pulling equipment including mail hampers, loading
her mail truck, mounting and dismounting her mail truck and walking on concrete floors. She
believed that these work duties caused her right knee problem. Appellant was treated by
Dr. Charles B. May, a Board-certified orthopedist, on October 23, 2012 for right knee pain. She
reported right knee pain for several years beginning with a work-related fall in the 1980’s and
increased right knee discomfort and stiffness over the past few months without known injury or
incident. Dr. May noted intact motor and sensory function in the upper and lower extremities.
Right knee examination revealed soft tissue swelling, moderate effusion, tenderness to palpation
about the medial joint line of the medial meniscus and positive McMurray’s examination. Right
knee x-rays demonstrated minimal arthritic changes about the mediolateral and patellofemoral
compartments without fracture or acute injury and diagnosed moderate effusion. On
November 6, 2012 Dr. May noted findings of trace effusion, mild patellofemoral crepitus, focal
medial joint line tenderness and mild lateral tenderness. A right knee magnetic resonance
imaging (MRI) scan demonstrated signal in the posterior and medial meniscus but no definitive
sign of meniscal tear. Dr. May noted that appellant had a full thickness chondral defect of the
patella and possible meniscus tear of the right knee and recommended an intra-articular injection.
In a January 24, 2013 report, he noted that her examination was unchanged and diagnosed
possible meniscal tear of the right knee. An October 30, 2012 MRI scan of the right knee
revealed a full thickness chondral defect at the patellar lateral facet with chondral flaps, intact
right knee menisci and cruciate and collateral ligaments, small joint effusion and a Baker’s cyst.
On March 22, 2013 OWCP advised appellant of the type of evidence needed to establish
her claim. It particularly requested that she submit a physician’s reasoned opinion addressing the
relationship of her claimed condition and specific work factors.
In a questionnaire dated March 25, 2013, appellant indicated that she experienced right
knee pain and had no history of injuries to her knees. She noted working at the employing
establishment for over 26 years. Appellant first noticed right knee swelling about three weeks
before her physician appointment in October 2012. She submitted an April 1, 2013 report from
Dr. May who treated her for pain over the anterior and medial aspect of her knee. Dr. May noted
that conservative treatment such as intra-articular injections were not successful in alleviating
appellant’s pain. He diagnosed a chondral injury, patellofemoral joint and possibly a medial
meniscus tear and recommended diagnostic arthroscopic surgery. Dr. May noted a right knee
x-ray which showed minimal arthritic changes and an MRI scan, which showed a Baker’s cyst
and cartilage defects in the patella with a signal in the medial meniscus but not diagnostic for a
tear. Appellant reported that her symptoms began in the 1980’s when she fell while exiting a
mail truck and felt her activities at work exacerbated her symptoms. Dr. May opined that
certainly climbing in and out of trucks, getting up and down frequently from a seated position
would aggravate her symptoms.
In a May 21, 2013 decision OWCP, denied the claim on the grounds that the medical
evidence was insufficient to establish that appellant’s claimed conditions were casually related to
work events.

2

Appellant requested reconsideration. She submitted a July 3, 2013 report from Dr. May
who treated her for pain over the anterior and medial aspect of her knee. Dr. May noted that
intra-articular injections were not successful in alleviating appellant’s pain. He diagnosed a
chondral injury, patellofemoral joint and possibly a medial meniscus tear and recommended
diagnostic arthroscopic surgery. Dr. May noted that appellant had an x-ray of the right knee
which showed minimal arthritic changes in the knee and an MRI scan which showed a Baker’s
cyst and cartilage defects in the patellar with signal in the medial meniscus. Appellant reported
that her symptoms began in the 1980’s when she fell while exiting a mail truck and she felt as
though her activities at work exacerbated her symptoms. Dr. May opined that it was highly
probable that climbing in and out of trucks, getting up and down frequently from a seated
position have aggravated her symptoms.
In a decision dated August 26, 2013, OWCP denied modification of the May 21, 2013
decision.
Appellant requested reconsideration on November 30, 2013. In an undated statement she
indicated that in the 1980’s she tripped when exiting her mail truck and landed on her right knee;
however, she never filed a claim. Appellant indicated that she had injections and fluid drawn
from her knee for temporary relief. She asserted that her employment is contributing to her
underlying condition.
In a December 11, 2013 decision, OWCP denied appellant’s request for reconsideration
on the grounds that the evidence submitted was insufficient to warrant a merit review.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim. When an employee claims that he or she sustained an
injury in the performance of duty, he or she must submit sufficient evidence to establish that he
or she experienced a specific event, incident or exposure occurring at the time, place and in the
manner alleged. Appellant must also establish that such event, incident or exposure caused an
injury.2
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) 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.
The medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
2

See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40 ECAB 1143 (1989). See Walter D.
Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB 243, 247 (1967)
(traumatic injury).

3

physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.3
ANALYSIS -- ISSUE 1
It is not disputed that appellant’s work duties included casing mail, bending, stooping,
pushing and pulling equipment including mail hampers, loading her mail truck, mounting and
dismounting her mail truck and walking. It is also not disputed that she has been diagnosed with
a chondral injury, patellofemoral joint and possibly a medial meniscus tear. However, appellant
has not submitted sufficient medical evidence to establish that any of these conditions are
causally related to specific employment factors or conditions.
In an April 1, 2013 report, Dr. May diagnosed a chondral injury, patellofemoral joint and
possibly a medial meniscus tear. He noted that a right knee x-ray showed minimal arthritic
changes and an MRI scan which showed a Baker’s cyst and cartilage defects in the patella with
signal in the medial meniscus. Dr. May noted that appellant related her symptoms to work
activities since the 1980’s when she fell getting out of a mail truck. He opined that certainly
climbing in and out of trucks, getting up and down frequently from a seated position would
aggravate appellant’s symptoms. Although Dr. May supported causal relationship in a
conclusory statement, he did not provide medical rationale explaining the basis of his opinion
regarding causal relationship. Dr. May did not sufficiently explain how climbing in and out of
trucks, getting up and down frequently from a seated position at work would cause the diagnosed
conditions.
Similarly, in a July 3, 2013 report Dr. May noted diagnoses and recommended diagnostic
arthroscopic surgery. He opined that it was highly probable that climbing in and out of trucks,
getting up and down frequently from a seated position aggravated appellant’s symptoms. The
Board notes that Dr. May’s report provides some support for causal relationship but is
insufficient to establish that the claimed right knee condition was causally related to his
employment duties. In that report, he opined that it “was highly probable.” However, at best,
this report provides only speculative and unreasoned support for causal relationship as the
physician qualifies his support by noting that it was “highly probable” that appellant’s
employment caused her condition. Dr. May provided no medical reasoning to explain how
particular work activities caused or aggravated a diagnosed condition.4
Other reports from Dr. May did not relate a history of the claimed work injury or
specifically address how particular work duties caused or contributed to appellant’s diagnosed
medical condition. Rather, Dr. May appeared to attribute her condition to a traumatic fall she
3

Solomon Polen, 51 ECAB 341 (2000).

4

Medical opinions that are speculative or equivocal in character are of diminished probative value. D.D., 57
ECAB 734 (2006).

4

sustained in the 1980’s. These reports were of little probative value and insufficient to establish
appellant’s occupational illness claim. Likewise, other medical evidence is insufficient to
establish the claim as it did not provide an opinion on the causal relationship between her job
duties and her diagnosed right knee condition.
On appeal, appellant disagrees with OWCP’s decision denying her claim for
compensation and noted that she submitted sufficient evidence to establish her claim. As noted
above, the medical evidence does not establish that her diagnosed conditions were causally
related to her employment. Reports from appellant’s physician’s failed to provide sufficient
medical rationale explaining the reasons why appellant’s diagnosed right knee conditions were
caused or aggravated by particular employment duties. The need for such rationale is
particularly important in view of her preexisting arthritic changes in the right knee.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of FECA,5 OWCP has the discretion to reopen a case for review
on the merits. It must exercise this discretion in accordance with the guidelines set forth in
section 10.606(b)(2) of the implementing federal regulations, which provides that a claimant may
obtain review of the merits of his or her written application for reconsideration, including all
supporting documents, sets forth arguments and contain evidence that:
“(1) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(2) Advances a relevant legal argument not previously considered by OWCP; or
“(3) Constitutes relevant and pertinent new evidence not previously considered by
OWCP.”6
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.7
ANALYSIS -- ISSUE 2
OWCP denied appellant’s claim on the grounds that she failed to provide sufficient
medical evidence to establish that the diagnosed condition was causally related to her work
duties. Thereafter, it denied her reconsideration request, without a merit review.
The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim.
In her request for reconsideration, appellant did not show that OWCP erroneously applied or
5

5 U.S.C. § 8128(a).

6

20 C.F.R. § 10.606(b)(2).

7

Id. at § 10.608(b).

5

interpreted a specific point of law. She did not identify a specific point of law or show that it
was erroneously applied or interpreted. Appellant did not advance a new and relevant legal
argument. In her undated statement she indicates that in the 1980’s she tripped when she exited
her mail truck and landed on her right knee; however, she never filed a claim. Appellant
indicated that she had injections and fluid drawn from her knee for temporary relief. She asserts
that her employment is contributing to her underlying condition. These assertions do not show a
legal error by OWCP or a new and relevant legal argument. The underlying issue in this case is
whether appellant’s diagnosed condition is causally related to her workplace exposures. That is
a medical issue which must be addressed by relevant new medical evidence.8 However,
appellant did not submit any new and relevant medical evidence in support of her claim.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant 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 evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her
claimed conditions were causally related to her employment. The Board finds that OWCP
properly denied her request for reconsideration.

8

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

6

ORDER
IT IS HEREBY ORDERED THAT the December 11 and August 26, 2013 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: June 23, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 18-1289
Issued: January 2, 2019

Case Submitted on the Record

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

JURISDICTION
On June 13, 2018 appellant, through counsel, filed a timely appeal from an April 30, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

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.

ISSUE
The issue is whether appellant has met his burden of proof to establish more than seven
percent permanent impairment of the left lower extremity, for which he previously received
schedule award compensation.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On December 11, 2009 appellant, then a 51-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 9, 2009 he injured his left knee when he slipped
and fell while in the performance of duty. He stopped work on December 9, 2009. OWCP
accepted the claim for left knee strain and left quadriceps tendon rupture. On February 2, 2010
appellant underwent surgical repair of the left quadriceps tendon rupture, which OWCP
authorized. As of April 10, 2010, he was able to return to work in a part-time limited-duty
capacity. Appellant was released to resume regular, full-time employment effective April 4, 2011.
By decision dated August 29, 2012, OWCP granted appellant a schedule award for eight
percent permanent impairment of the left lower extremity pursuant to the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).4 The schedule award covered a 23.04-week period from August 2, 2010 through
January 10, 2011. It based the award on the April 5, 2012 second opinion evaluation by
Dr. Manhal A. Ghanma, an orthopedic surgeon, who rated appellant based on his left quadriceps
rupture.5
On November 20, 2015 appellant filed a claim for an increased schedule award (Form
CA-7). In support of the claim, he submitted a November 16, 2015 impairment rating from
Dr. Catherine Watkins Campbell, Board-certified in occupational and family medicine.
Dr. Watkins Campbell reviewed the medical evidence of record and discussed appellant’s
difficulties performing activities of daily living. On physical examination, she reported 4-/5
weakness on left knee extension, 4/5 weakness on left knee flexion, medial and lateral left patellar
asymmetrical laxity, a positive Trendelenburg test, and asymmetrical peripatellar swelling on the
left. Dr. Watkins Campbell measured the right thigh as 57 centimeters and the left thigh as 53
centimeters and the right calf as 43 centimeters and the left calf as 44 centimeters. Citing
Table 16-3 on page 509 of the A.M.A., Guides, she identified the diagnosis as a class 1 complete
rupture of a tendon with moderate motion deficits and/or significant weakness. Dr. Watkins

3

Docket No. 18-0442 (issued July 11, 2018).

4

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

5

Table 16-3, Knee Regional Grid, A.M.A., Guides 509 (6th ed. 2009).

2

Campbell applied grade modifiers and application of the net adjustment formula yielded a grade E,
or 13 percent permanent impairment of the left lower extremity.
An OWCP medical adviser reviewed the record on February 28, 2016. Using Table 16-3
on page 509, he identified the diagnosis as a ruptured tendon with mild motion deficits, which
yielded a default value of seven percent. The medical adviser applied a grade modifier of two for
functional history due to appellant’s Trendelenburg gait, a grade modifier of four for physical
examination due to his thigh atrophy, and a grade modifier of one for clinical studies due to mild
pathology. He calculated a net adjustment of +4, and found a left lower extremity permanent
impairment rating of nine percent. The medical adviser found that maximum medical
improvement occurred on April 6, 2011, when appellant returned to full-duty activity. He
disagreed with Dr. Watkins Campbell’s finding that appellant had significant weakness or
moderate motion deficits as the strength measurements of the knee were 4 to 4-/5 and his
impairment due to reduced motion was mild.
On March 7, 2016 OWCP provided Dr. Watkins Campbell a copy of its medical adviser’s
report to review. In a supplemental report dated March 30, 2016, Dr. Watkins Campbell again
opined that appellant had 13 percent impairment of the left lower extremity. On April 20, 2016
OWCP’s medical adviser reviewed Dr. Watkins Campbell’s March 30, 2016 report and confirmed
that his opinion was unchanged.
OWCP determined that a conflict existed between OWCP’s medical adviser and
Dr. Watkins Campbell regarding the extent of appellant’s permanent impairment. It referred him
to Dr. Dennis A. Glazer, a Board-certified orthopedic surgeon, for an impartial medical
examination.
In a March 16, 2017 impairment evaluation, Dr. Glazer discussed appellant’s history of
injury and current complaints of patellar knee pain. On examination, he measured full flexion of
110 degrees, no effusion or pivot shift, and one inch of thigh atrophy on the left. Dr. Glazer found
quadriceps weakness of 4+/5 on the left. Referencing Table 16-3 of the A.M.A., Guides, he
identified the diagnosis as a class 1 ruptured tendon with full range of motion and 4+/5 quadriceps
strength, which yielded a default impairment of seven percent. Dr. Glazer applied a grade modifier
of one for functional history due to appellant’s normal gait and history, a grade modifier of one for
physical examination findings of thigh atrophy of one inch, and determined that a grade modifier
for clinical studies was not applicable as it confirmed the diagnosis. Applying the net adjustment
formula yielded no change from the default value of seven percent.6
An OWCP medical adviser reviewed the evidence on June 16, 2017 and concurred with
Dr. Glazer’s findings.
By decision dated August 21, 2017, OWCP found that appellant had seven percent
permanent impairment of the left lower extremity. It noted that he had previously received a

6

Appellant telephoned OWCP on May 25, 2017, noting that Dr. Glazer had referenced the name of another
individual in his report. Dr. Glazer provided an addendum report on June 2, 2016 correcting the reference to another
individual.

3

schedule award on August 29, 2012 for eight percent permanent impairment of the left lower
extremity calculated under the sixth edition of the A.M.A., Guides.
Appellant, through counsel, timely requested a telephone hearing before an OWCP hearing
representative with respect to August 21, 2017 schedule award determination.7 At the
February 14, 2018 hearing, counsel contended that OWCP erred in finding that appellant had less
than eight percent permanent impairment as it had not rescinded its prior determination. He further
asserted that OWCP erred in using its medical adviser to create a conflict in medical opinion.
By decision dated April 30, 2018, an OWCP hearing representative affirmed the
August 21, 2017 decision. She found that OWCP properly declared a conflict in medical opinion.
The hearing representative determined that Dr. Glazer’s report constituted the weight of the
evidence and established that appellant had no more than seven percent permanent impairment of
the left lower extremity.
LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.8 FECA, however,
does not specify the manner by which the percentage loss of a member, function or organ shall be
determined. To ensure consistent results and equal justice under the law, good administrative
practice requires the use of uniform standards applicable to all claimants. The implementing
regulations have adopted the A.M.A., Guides as the appropriate standard for evaluating schedule
losses.9 Effective May 1, 2009, schedule awards are determined in accordance with the sixth
edition of the A.M.A., Guides (2009).10
In determining the extent of permanent impairment for the lower extremities under the
sixth edition of the A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each
part of the lower extremity to be rated. With respect to the knee, reference is made to Table 16-3
(Knee Regional Grid) beginning on page 509.11 After the class of diagnosis (CDX) is determined
from the Knee Regional Grid (including identification of a default grade value), the net adjustment
formula is applied using the grade modifier for functional history (GMFH), grade modifier for
7

By decision dated November 15, 2017, OWCP determined that appellant received a $2,268.80 overpayment of
compensation for the period December 20, 2010 through January 10, 2011 as it overpaid him schedule award
compensation. It found that he was without fault in creating the overpayment, but denied waiver of the overpayment,
noting that he had not responded to its preliminary overpayment determination. In a decision dated July 11, 2018, the
Board affirmed the November 15, 2017 overpayment decision. Docket No. 18-0442 (issued July 11, 2018).
8

For a total of 100 percent loss of use of a leg, an employee shall receive 288 weeks’ compensation. 5 U.S.C.
§ 8107(c)(2).
9

20 C.F.R. § 10.404.

10

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (March 2017).
11

See A.M.A., Guides 509-11.

4

physical examination (GMPE), and grade modifier for clinical studies (GMCS). The net
adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).12 Under Chapter 2.3,
evaluators are directed to provide reasons for their impairment rating choices, including choices
of diagnoses from regional grids and calculations of grade modifier scores.13
Section 8123(a) of FECA provides that if there is a disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.14 The implementing regulations
state that if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either the second opinion physician or an OWCP medical adviser, OWCP shall
appoint a third physician to make an examination.15 Where OWCP has referred the case to an
impartial medical examiner to resolve a conflict in the medical evidence, the opinion of such a
specialist, if sufficiently well-reasoned and based upon a proper factual background, must be given
special weight.16
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish more than seven
percent permanent impairment of the left lower extremity, for which he previously received
schedule award compensation.
OWCP accepted appellant’s traumatic injury claim for left knee strain and left quadriceps
tendon rupture. It also authorized a February 2, 2010 surgical procedure to repair the left
quadriceps tendon rupture. On August 29, 2012 OWCP granted appellant a schedule award for
eight percent permanent impairment of the left lower extremity. In November 2015, appellant
filed a claim for an additional schedule award (Form CA-7), and submitted Dr. Watkins
Campbell’s November 16, 2015 impairment rating. The district medical adviser disagreed with
Dr. Watkins Campbell’s 13 percent left lower extremity rating, finding only 9 percent permanent
impairment.
OWCP properly found that a conflict existed between the district medical adviser and
Dr. Watkins Campbell regarding the extent of appellant’s permanent impairment, and
consequently, referred him to Dr. Glazer, a Board-certified orthopedic surgeon, for an impartial
medical examination.17 Where OWCP has referred the case to an impartial medical examiner to

12

Id. at 515-22.

13

Id. at 23-28.

14

5 U.S.C. § 8123(a); see T.M., Docket No. 18-0149 (issued September 5, 2018).

15

20 C.F.R. § 10.321(b).

16

See T.C., Docket No. 17-1741 (issued October 9, 2018).

17

Supra note 15.

5

resolve a conflict in the medical evidence, the opinion of such a specialist, if sufficiently wellreasoned and based upon a proper factual background, must be given special weight.18
In an impairment evaluation dated March 16, 2017, Dr. Glazer measured full flexion to
110 degrees, no effusion, one inch of left thigh atrophy, and quadriceps weakness of 4+/5 of the
left side. Using the knee regional grid set forth at Table 16-3 on page 509 of the A.M.A., Guides,
he identified the diagnosis as a class 1 ruptured tendon with no loss of motion and 4+/5 strength
of the quadriceps, which he found yielded a seven percent default impairment rating. Dr. Glazer
applied a grade modifier of one for functional history based on appellant’s normal gait, a grade
modifier of one for physical examination findings due to one inch of thigh atrophy, and found that
a grade modifier for clinical studies was not applicable as it confirmed the diagnosis. He utilized
the net adjustment formula and found no change from the default value of seven percent.19 An
OWCP medical adviser reviewed Dr. Glazer’s report and determined that he had properly applied
the A.M.A., Guides.
The Board finds that the well-reasoned report from Dr. Glazer is entitled to the special
weight of the evidence.20 The evidence of record does not establish more than seven percent
permanent impairment of the left lower extremity.
Counsel asserts that OWCP erred in finding that he had less than the previously awarded
eight percent impairment, noting that it had not followed its procedures for rescission.21 As noted
above, appellant has not presented evidence to establish an increased impairment for schedule
award purposes.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish more than seven
percent permanent impairment of the left lower extremity, for which he previously received
schedule award compensation.

18

See L.G., Docket No. 18-0065 (issued June 11, 2018).

19

Utilizing the net adjustment formula discussed above, (GMFH-CDX) + (GMPE-CDX), or (1-1) + (1-1) = 0,
yielded a zero adjustment.
20

Supra note 16.

21

As previously noted, appellant separately appealed the November 15, 2017 overpayment decision. Supra note 7.

6

ORDER
IT IS HEREBY ORDERED THAT the April 30, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 2, 2019
Washington, DC

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

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

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

7