United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.M., Appellant
and
U.S. POSTAL SERVICE, SOUTHEASTERN
PROCESSING & DISTRIBUTION CENTER,
Pittsburgh, PA, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1531
Issued: February 25, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 10, 2019 appellant, through counsel, filed a timely appeal from a January 30, 2019
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 greater than one
percent permanent impairment of his left upper extremity, for which he previously received a
schedule award.
FACTUAL HISTORY
On February 16, 2007 appellant, then a 46-year-old mail processor, filed a traumatic injury
claim (Form CA-1) alleging that on February 11, 2007 he injured his left elbow when pulling down
trays of mail while in the performance of duty. OWCP accepted the claim for sprain/strain of left
elbow, and subsequently OWCP expanded acceptance of the claim to include lesion of the ulnar
nerve on the left.
On September 19, 2008 Dr. Michael J. Maggitti, a Board-certified orthopedic surgeon,
noted that appellant had failed conservative treatment and an ulnar nerve transposition was
warranted. Surgical records confirm that appellant underwent an authorized ulnar nerve
transposition procedure with ulnar nerve and flexor release on October 14, 2008 which was
performed by Dr. Maggitti. OWCP paid appellant intermittent wage-loss compensation benefits
on the supplemental rolls from October 13, 2008 until December 7, 2008.
On December 19, 2017 appellant, through counsel, filed a claim for a schedule award
(Form CA-7).
In support of his claim, appellant submitted a December 15, 2016 report by Dr. David
Weiss, a Board-certified orthopedic surgeon and osteopath, who noted appellant’s history of injury
and treatment. Regarding appellant’s left elbow, Dr. Weiss reported findings of a well-healed
surgical scar over the medial aspect, joint stable to valgus and varus stress tests. He noted that
appellant had tenderness over his medial epicondyle, and no tenderness over the cubital tunnel.
Tinel’s and ulnar nerve compression tests were positive. Regarding range of motion (ROM),
Dr. Weiss related that he had obtained 3 measurements of appellant’s left elbow and that flexion
and extension were 145/145 degrees, pronation was 80/80 degrees, and supination was 80/80
degrees. He referred to the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides)3 and noted that for entrapment
neuropathy, left ulnar nerve at elbow, appellant had a grade modifier clinical studies (GMCS) of
1, grade modifier functional history (GMFH) of 1, and a grade modifier physical examination
(GMPE) of 2. Dr. Weiss found that, following application of the net adjustment formula,
appellant’s permanent impairment rating remained at two percent. He also referred to Table 15-4
for a Class 1 left medial epicondylitis with flexor release, and found that appellant had a Class 1
impairment with a GMFH of 1, GMPE of 1, and GSCS of 1 therefore the net adjustment was 0,
and appellant’s default impairment rating was five percent impairment, after net adjustment.4
Dr. Weiss concluded that appellant had a combined left upper extremity permanent impairment of

3

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

4

Id. at 399.

2

seven percent for his left ulnar nerve entrapment neuropathy and medical epicondylitis, and that
appellant had reached maximum medical improvement (MMI) on December 16, 2016.
In a report dated April 8, 2018, Dr. Jovito Estaris, Board-certified in occupational
medicine, serving as a district medical adviser (DMA), found that appellant had one percent
permanent impairment of the left upper extremity.
The DMA noted that, for medial epicondylitis, Table 15-4,5 Elbow Regional Grid,
Dr. Weiss chose a Class 1 with a default value of 5, which required a surgical release of flexor or
extensor tendon, however, the medical records did not include an operative report. He indicated
that appellant had surgery for ulnar nerve entrapment which was “completely different from the
surgical release of the flexor or extensor tendon.” The DMA advised that the correct rating was
Class 1, level 1, with a default value of one percent. He also noted that appellant had an injection
to the medial epicondyle, but this was not a surgical release.
The DMA referred to Table 15-23,6 Entrapment/Compression Neuropathy Impairment,
and indicated that the diagnostic test findings were most consistent with a GMCS of 1. He also
noted that the GMFH was consistent with mild intermittent symptoms involving the left upper
extremity for a GMFH of 1, and that examination of the left hand revealed a GMPE of 2. Using
the net adjustment formula, the DMA opined that appellant had one percent impairment to the left
upper extremity with MMI on December 15, 2016. The DMA also noted that the record contained
three sets of ROM measurements; however, under Table 15-33,7 appellant had zero percent loss
of ROM.
By decision dated September 12, 2018, OWCP granted appellant a schedule award for one
percent permanent impairment of the left upper extremity. The award ran for 3.12 weeks for the
period December 15, 2016 to January 15, 2017.
On November 8, 2018 appellant, through counsel, requested reconsideration. Counsel
noted that there was a conflict in the medical opinion evidence between Dr. Weiss and the DMA,
and therefore a referral for an impartial medical evaluation was warranted.
By decision dated January 30, 2019, OWCP found that appellant had no more than the
previously awarded one percent permanent impairment of the left upper extremity. It explained
that Dr. Weiss’ report was of diminished probative value due to the errors in his report.

5

Id. at 399.

6

Id. at 449.

7

Id. at 474.

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LEGAL PRECEDENT
The schedule award provisions of FECA,8 and its implementing federal regulations,9 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. FECA,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such a determination is a matter which rests in the
discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized
the use of a single set of tables so that there may be uniform standards applicable to all claimants.
OWCP evaluates the degree of permanent impairment according to the standards set forth in the
sixth edition of the A.M.A., Guides, published in 2009.10 The Board has approved the use by
OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes.11
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning Disability
and Health (ICF).12 Under the sixth edition, the evaluator identifies the impairment class of
diagnosis (CDX), which is then adjusted GMFH, GMPE, and GMCS.13 The net adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).14 Evaluators are directed to
provide reasons for their impairment choices, including the choices of diagnoses from regional
grids, and calculations of modifier scores.15
The A.M.A., Guides also provide that the ROM impairment method is to be used as a
stand-alone rating for upper extremity impairments when other grids direct its use or when no other
diagnosis-based sections are applicable.16 If ROM is used as a stand-alone approach, the total of
motion impairment for all units of function must be calculated. All values for the joint are
measured and added.17 Adjustments for functional history may be made if the evaluator

8

Supra note 2 at 8107.

9

20 C.F.R. § 10.404.

10

For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides (2009) is used. Federal (FECA)
Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims, Chapter 2.808.6
(March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
11

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

12

A.M.A., Guides (6th ed. 2009), at 3, section 1.3, International Classification of Functioning, Disability and Health
(ICF): A Contemporary Model of Disablement.
13

Id. at 494-531.

14

Id. 411.

15

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

16

A.M.A., Guides 461.

17

Id. at 473.

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determines that the resulting impairment does not adequately reflect functional loss and functional
reports are determined to be reliable.18
Regarding the application of ROM or DBI methodologies in rating permanent impairment
of the upper extremities, FECA Bulletin No. 17-06 provides: “As the [A.M.A.,] Guides caution
that if it is clear to the evaluator evaluating loss of ROM that a restricted ROM has an organic
basis, three independent measurements should be obtained and the greatest ROM should be used
for the determination of impairment, the CE [claims examiner] should provide this information
(via the updated instructions noted above) to the rating physician(s).”19
FECA Bulletin further advises: “Upon initial review of a referral for upper extremity
impairment evaluation, the DMA should identify: (1) the methodology used by the rating
physician (i.e., DBI or ROM); and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,] Guides allow
for the use of both the DBI and ROM methods to calculate an impairment rating for the diagnosis
in question, the method producing the higher rating should be used.”20
The Bulletin also advises: “If the original impairment rating found by the DMA to be
insufficient was provided from a second opinion or referee physician (versus the claimant’s
physician), the CE should request a supplemental/clarification report from the second opinion or
referee physician to address the medical evidence necessary to complete the impairment
assessment. Medical evidence received in response to this request should then be routed back to
the DMA for a final determination. The CE should not render a decision on the schedule award
impairment rating until the necessary medical evidence has been obtained.”21
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with an OWCP medical adviser
providing rationale for the percentage of impairment specified.22
ANALYSIS
The Board finds that the case is not in posture for decision.
In a December 15, 2016 report, Dr. Weiss, appellant’s treating physician, noted appellant’s
history of injury and treatment, examined appellant, and determined that appellant had five percent
permanent impairment to the left upper extremity, based upon the diagnosis of left medial
18

Id. at 474.

19

V.L., Docket No. 18-0760 (issued November 13, 2018); FECA Bulletin No. 17-06 (May 8, 2018).

20

Id.

21

Id.

22

See Federal (FECA) Procedure Manual, supra note 10 at Chapter 2.808.6(f) (February 2013). See also J.T.,
Docket No. 17-1465 (issued September 25, 2019); C.K., Docket No. 09-2371 (issued August 18, 2010); Frantz
Ghassan, 57 ECAB 349 (2006).

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epicondylitis with flexor release. OWCP’s DMA reviewed Dr. Weiss’ report on April 8, 2018.
Regarding the left medial epicondylitis diagnosis, for which Dr. Weiss assigned five percent
permanent impairment, the DMA explained that no operative report was of record, but that
appellant did not undergo a left medial epicondylitis with flexor release therefore appellant did not
have a five percent permanent impairment due to this diagnosis. The DMA explained that using
Table 15-4, appellant’s left medial epicondylitis diagnosis placed him in Class 1, with a default
value of 1, rather than the default value of 5 that Dr. Weiss had assigned based upon a surgical
procedure.
The Board has duly considered the matter and finds that the operative report of October 14,
2008 supports a finding that appellant did undergo a left ulnar nerve transposition with ulnar nerve
and flexor release. As the DMA reported that no operative report was of record, after obtaining
all necessary medical evidence, the entire medical record should be routed back to the DMA for
an opinion concerning the nature and percentage of impairment in accordance with the A.M.A.,
Guides.23 After such further development as necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

23

Id.

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ORDER
IT IS HEREBY ORDERED THAT the January 30, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and this case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: February 25, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Raleigh, NC, Employer
__________________________________________

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

Docket No. 07-1390
Issued: October 15, 2007

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 April 26, 2007 appellant filed a timely appeal from decisions of the Office of
Workers’ Compensation Programs dated October 12, 2006 and February 2, 2007 which denied
his claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
employment-related injury on August 14, 2006.
FACTUAL HISTORY
On August 25, 2006 appellant, then a 40-year-old rural carrier, filed a Form CA-1,
traumatic injury claim, alleging that he hurt his back on August 14, 2006 when he reached and
extended to put mail in a box. He did not stop work. By letter dated September 5, 2006, the
Office informed appellant that he needed to submit a medical report in which a physician
provided a reasoned explanation of how any diagnosed condition was caused, aggravated,
contributed to or precipitated by the August 14, 2006 incident. Appellant submitted medical

reports from Dr. M.A. Samia, Board-certified in family medicine, dated August 25 to 30, 2006.
Dr. Samia noted the history of injury, diagnosed low back strain and advised that appellant could
work with a 10-pound weight restriction. Dr. George M. Charron, a Board-certified orthopedic
surgeon, provided reports dating from August 28 to September 25, 2006. On September 5, 2006
he reported a history that appellant noted pain between his shoulders and in his lumbar spine
after moving an object at work. Examination findings included lumbar back pain. Dr. Charron
diagnosed cervical and lumbar back sprains. On September 7 and 25, 2006 he provided
restrictions that appellant could work sedentary duty for four hours a day with a 20-pound lifting
restriction. On September 7, 2006 appellant accepted a modified-duty position for four hours a
day.
In a decision dated October 12, 2006, the Office found that the August 14, 2006
employment incident occurred, but denied the claim on the grounds that appellant had not
established an injury as alleged. On November 3, 2006 appellant requested a review of the
written record and submitted a duty status report dated October 12, 2006 in which Dr. Charron
advised that appellant could return to full-time work with the only restriction that lifting was
limited to 20 pounds. By decision dated February 2, 2007, an Office hearing representative
affirmed the October 12, 2006 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. Regardless of whether
the asserted claim involves traumatic injury or occupational disease, an employee must satisfy
this burden of proof.2
Office regulations, at 20 C.F.R. § 10.5(ee) define a traumatic injury as a condition of the
body caused by a specific event or incident or series of events or incidents within a single
workday or shift.3 To determine whether an employee sustained a traumatic injury in the
performance of duty, the Office must determine whether “fact of injury” is established. First, an
employee has the burden of demonstrating the occurrence of an injury at the time, place and in
the manner alleged, by a preponderance of the reliable, probative and substantial evidence.
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish a causal relationship between the employment incident and the alleged
disability and/or condition for which compensation is claimed. An employee may establish that

1

5 U.S.C. §§ 8101-8193.

2

Gary J. Watling, 52 ECAB 278 (2001).

3

20 C.F.R. § 10.5(ee); Ellen L. Noble, 55 ECAB 530 (2004).

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the employment incident occurred as alleged, but fail to show that his or her disability and/or
condition relates to the employment incident.4
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.5 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical 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.6 Neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.7
ANALYSIS
Although the August 14, 2006 incident occurred, appellant has not met his burden of
proof to establish that he sustained an injury caused by this incident. The medical evidence of
record includes several reports submitted by Dr. Samia. While Dr. Samia diagnosed a low back
strain, he did not provide an opinion regarding the cause of the diagnosed condition and medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.8 Dr. Charron noted a history of injury
that appellant’s cervical and lumbar spines hurt after he moved an object at work and he
diagnosed cervical and lumbar strains. The evidence of record including appellant’s claim form,
however, supports that he hurt his back while placing mail in a box, as he reported to Dr. Samia.
Medical opinion regarding causal relationship must be based on a complete factual and medical
background with an accurate history of the claimant’s employment injury and must explain from
a medical perspective how the current condition is related to the injury.9 Dr. Charron’s reports
are, therefore, of diminished probative value as he reported an inaccurate history and he too did
not provide an opinion regarding the cause of appellant’s condition.10
The opinion of a physician supporting causal relationship must be one of reasonable
medical certainty that the condition for which compensation is claimed is causally related to
federal employment and such relationship must be supported with affirmative evidence,
4

Gary J. Watling, supra note 2.

5

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

6

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

7

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

8

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

9

Joan R. Donovan, 54 ECAB 615 (2003).

10

Willie M. Miller, supra note 8.

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explained by medical rationale and be based upon a complete and accurate medical and factual
background of the claimant.11 Appellant submitted no such evidence in this case and thus, did
not establish the critical element of causal relationship. He, therefore, did not meet his burden of
proof to establish that he sustained an injury on August 14, 2006.12
CONCLUSION
The Board finds that, while appellant met his burden of proof to establish that he
sustained an employment incident on August 14, 2006, he did not meet his burden of proof to
establish that he sustained an injury causally related to this incident.13
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 2, 2007 and October 12, 2006 be affirmed.
Issued: October 15, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

11

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

12

John W. Montoya, 54 ECAB 306 (2003).

13

The Board notes that appellant submitted evidence with his appeal to the Board. The Board cannot consider
this evidence, however, as its review of the record is limited to the evidence that was before the Office at the time of
its final decision. 20 C.F.R. § 501.2(c).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.T., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Fresno, CA, Employer
__________________________________________

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

Docket No. 06-2127
Issued: April 5, 2007

Case Submitted on the Record

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

JURISDICTION
On September 18, 2006 appellant filed a timely appeal from a May 25, 2006 decision of
the Office of Workers’ Compensation Programs which reduced her compensation benefits and a
June 12, 2006 decision denying merit review. 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 reduce appellant’s
compensation benefits based on her capacity to earn wages as a telephone solicitor; and
(2) whether the Office properly refused to reopen her claim for further review of the merits
pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY
On May 9, 1999 appellant, then a 24 year-old tax examining assistant, sustained a left
ankle sprain when she slipped and fell at work. She stopped work that day and has not returned.1
The accepted conditions include left ankle reflex sympathetic dystrophy. Appellant was placed
on the periodic rolls.2 In December 1998, she moved to Kent, Washington, in June 1999, to
Sevierville, Tennessee and in September 20, 2000 to San Antonio, Texas where she came under
the care of Dr. Stephanie Jones, a Board-certified anesthesiologist. By report dated April 29,
2004, Dr. Jones advised that appellant was capable of sedentary work without prolonged
standing or walking. In a July 28, 2004 work capacity evaluation, Dr. David Cantu, Boardcertified in family medicine, advised that appellant could work eight hours a day with restrictions
for one year of two hours of walking, standing, twisting, bending, stooping, lifting and no
squatting, kneeling or climbing. Lifting was restricted to 10 pounds.
In April 2004, appellant moved to Port Aransas, Texas, near Corpus Christi. On
January 20, 2005 she was referred to a vocational rehabilitation counselor, Donna Johnson, M.
Ed. As appellant was unable to secure employment, on May 31, 2005 Ms. Johnson identified the
positions of cashier, ticket seller and telephone solicitor as within appellant’s sedentary strength
category. Ms. Johnson noted appellant’s work restrictions and that the positions were reasonably
available in the local labor market of Corpus Christi, Texas. In an undated letter received on
November 10, 2005, appellant informed the Office that she had moved from Port Aransas to
New Braunfels, Texas.
By letter dated January 19, 2006, the Office proposed to reduce appellant’s compensation
benefits based on her capacity to earn wages as a cashier. In a response dated January 27, 2006,
appellant disagreed with the proposed reduction, contending that she could not stand for more
than one-half hour per day. In reports dated September 2 and December 2, 2005, Dr. Jones noted
diagnoses of reflex sympathetic dystrophy and leg pain. In a February 3, 2006 report, she
advised that the cashier position would require too much standing but that appellant could
otherwise perform sedentary work.
On March 23, 2006 the Office proposed to reduce appellant’s compensation benefits
based on her capacity to earn wages as a telephone solicitor.3 In an April 7, 2006 treatment note,
Dr. Jones reiterated her diagnoses and advised that appellant was stable.
By decision dated May 25, 2006, the Office reduced appellant’s compensation benefits,
effective May 23, 2006 based on her capacity to earn wages as a telephone solicitor.
1

Appellant initially fell on a wet floor at work on May 2, 1989 and fell in the parking lot at work on May 9, 1989.

2

On February 28, 1996 appellant was granted a schedule award for a 100 percent loss of use of the left leg. The
award ran from August 16, 1995 to February 20, 2001 and during this period, she also received retirement benefits
from the Office of Personnel Management. After the schedule award expired in 2001, appellant opted the Federal
Employees’ Compensation Act benefits and she was returned to the periodic rolls.
3

Section 299.357-014 of the Dictionary of Occupational Titles (DOT) provides that the position of telephone
solicitor requires sedentary strength and it is described as a position in which merchandise or services are solicited
over the telephone. United States Department of Labor, Dictionary of Occupational Titles, 4th ed. rev. 1991.

2

On June 3, 2006 appellant requested reconsideration. In a May 25, 2006 report,
Dr. Gerlyn Friesenhahn, a Board-certified neurologist, noted the history of injury and appellant’s
complaints of pain and recent leg weakness that caused falls. Dr. Friesenhahn advised that there
were no neurologic findings on examination to account for her falls and advised that she used a
cane. By decision dated June 12, 2006, the Office denied appellant’s reconsideration request.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.4 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 for all gainful employment, is entitled to compensation computed on loss of wageearning capacity.5
Section 8115 of the Act6 and Office regulations provide that wage-earning capacity is
determined by the actual wages received by an employee if the earnings fairly and reasonably
represent his wage-earning capacity. If the actual earnings do not fairly and reasonably represent
wage-earning capacity or the employee has no actual earnings, his or her wage-earning capacity
is determined with due regard to the nature of the injury, the degree of physical impairment,
usual employment, age, qualifications for other employment, the availability of suitable
employment and other factors or circumstances which may affect the wage-earning capacity in
his or her disabled condition.7
The Office must initially determine a claimant’s medical condition and work restrictions
before selecting an appropriate position that reflects his or her wage-earning capacity. The
medical evidence upon which the Office relies must provide a detailed description of the
condition.8 Additionally, the Board has held that a wage-earning capacity determination must be
based on a reasonably current medical evaluation.9
When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by the Office for selection of a position listed in the Department of Labor’s Dictionary of
Occupational Titles or otherwise available in the open market, that fits that employee’s
capabilities with regard to his or her physical limitations, education, age and prior experience.
Once this selection is made, a determination of wage rate and availability in the open labor
market should be made through contact with the state employment service or other applicable
4

James M. Frasher, 53 ECAB 794 (2002).

5

20 C.F.R. §§ 10.402, 10.403; John D. Jackson, 55 ECAB 465 (2004).

6

5 U.S.C. §§ 8101-8193.

7

5 U.S.C. § 8115; 20 C.F.R. § 10.520; John D. Jackson, supra note 5.

8

William H. Woods, 51 ECAB 619 (2000).

9

John D. Jackson, supra note 5.

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service.10 Finally, application of the principles set forth in Albert C. Shadrick11 will result in the
percentage of the employee’s loss of wage-earning capacity.12
In determining an employee’s wage-earning capacity based on a position deemed
suitable, but not actually held, the Office must consider the degree of physical impairment,
including impairment results from both injury related and preexisting conditions, but not
impairments resulting from post injury or subsequently acquired conditions. Any incapacity to
perform the duties of the selected position resulting from subsequently acquired conditions is
immaterial to the loss of wage-earning capacity that can be attributed to the accepted
employment injury and for which appellant may receive compensation.13
ANALYSIS -- ISSUE 1
The Board finds that the Office did not properly find that appellant was capable of
performing the selected position of telephone solicitor. The medical evidence consisted of the
April 29, 2004 report provided by Dr. Jones and the July 28, 2004 work capacity evaluation
provided by Dr. Cantu which established that appellant was no longer totally disabled and the
Office properly referred her for vocational rehabilitation counseling in January 2005. Because
appellant was unable to secure employment on May 31, 2005, the vocational rehabilitation
counselor identified three positions, cashier, ticket seller and telephone solicitor, that fit
appellant’s capabilities. The Office based its May 25, 2006 decision on the latter position which
is identified in the Dictionary of Occupational Titles as sedentary.14 In a February 3, 2006
report, Dr. Jones advised that appellant could work a sedentary position. The medical evidence,
therefore, established that she was physically capable of performing the telephone solicitor
position.
As previously noted, however, the selected position must be reasonably available in
appellant’s commuting area. The rehabilitation counselor based her May 31, 2005 job
classification survey on the Corpus Christi, Texas area. Appellant had moved from Port
Aransas, Texas, in the Corpus Christi area, to New Braunfels, Texas in the Fall of 2005.15 The
Office did not reduce her compensation until May 23, 2006. Office procedures state that the
availability of the employment is usually evaluated with respect to the area where the injured
employee resides at the time the determination is made.16 As the Office based its reasonable
availability findings without any consideration of appellant’s move in the fall of 2005, it failed to
10

James M. Frasher, supra note 4.

11

5 ECAB 376 (1953); see also 20 C.F.R. § 10.403.

12

James M. Frasher, supra note 4.

13

John D. Jackson, supra note 5.

14

Supra note 3.

15

The Board notes that New Braunfels is located approximately 210 miles northwest of Port Aransas, Texas.

16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Vocational Rehabilitation Services,
Chapter 2.814.8(c)(1) (December 1995).

4

meet its burden of proof to establish that the position of telephone solicitor was reasonably
available in the general labor market in the commuting area in which appellant lived at that time,
New Braunfels, Texas. Accordingly, the Office failed to establish that the position of telephone
solicitor represented appellant’s wage-earning capacity and failed to properly reduce her
compensation benefits.
CONCLUSION
The Board finds that the Office did not meet its burden of proof in reducing appellant’s
wage-earning capacity based on her ability to earn wages in the constructed position of telephone
solicitor because the Office did not establish that the selected position of telephone solicitor was
reasonably available in appellant’s commuting area of New Braunfels, Texas.
In view of the Board’s disposition of the first issue, the second issue is moot.17
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 25, 2006 be reversed.
Issued: April 5, 2007
Washington, DC

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

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

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

17

In light of this finding, the Board did not review Dr. Friesenhahn’s report, which appellant submitted with her
June 3, 2006 reconsideration request. Appellant also submitted evidence subsequent to the Board’s June 12, 2006
decision. The Board cannot consider this evidence, however, as its review of the record is limited to the evidence of
record which was before the Office at the time of its final decision. 5 U.S.C. § 501.2(c).

5


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

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

Docket No. 10-672
Issued: September 24, 2010

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 January 11, 2010 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decisions dated November 25, 2009 and January 29, 2010. Under
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 sustained a right shoulder injury in the performance
of duty on February 13, 2007; and (2) whether the Office abused its discretion in denying
appellant’s request for a hearing.
FACTUAL HISTORY
This case has previously been before the Board. In a December 19, 2008 decision,1 the
Board affirmed the Office’s March 5, 2008 decision denying appellant’s claim. The Board found
1

Docket No. 08-1546 (issued December 19, 2008). Appellant alleged injury on February 13, 2007 while
removing a chain hoist from a trolley. An April 30, 2007 magnetic resonance imaging (MRI) scan revealed a small
full thickness tear of the supraspinatus and a degenerative slap tear.

that he presented sufficient evidence to establish that he sustained the February 13, 2007 injury at
the time, place and in the manner alleged. The Board found, however, that appellant failed to
submit sufficient rationalized medical opinion evidence to establish that the February 13, 2007
incident caused the claimed right shoulder injury. The facts of this case are set forth in the
Board’s decision and are herein incorporated by reference.
By letter dated August 26, 2009, appellant’s attorney requested reconsideration. In an
April 22, 2009 report, Dr. Martin D. Fritzhand, a Board-certified urologist, stated that appellant
had experienced right shoulder symptoms prior to the February 13, 2007 work incident. He
advised that appellant’s pain and discomfort markedly increased following the incident, which
constituted a “serious” accident. Dr. Fritzhand noted that the prior physicians of record
attributed appellant’s right rotator cuff tear to the February 13, 2007 work incident. He stated
that it was within reasonable medical certainty that the February 13, 2007 incident caused a
marked exacerbation of shoulder pain and that appellant’s symptoms were caused by the
pathology shown in an April 30, 2007 MRI scan. Dr. Fritzhand stated that the factual and
medical evidence of record clearly demonstrated that the February 2007 incident resulted in
considerable pain and suffering. He asserted that the level of symptomatology clearly indicated
that a traumatic event, namely a rotator cuff tear, had occurred while appellant was performing
his work duties on February 13, 2007.
By decision dated November 25, 2009, the Office denied the claim, finding that appellant
failed to submit medical evidence sufficient to establish that he sustained a right shoulder injury
in the performance of duty on February 13, 2007.
By letter dated December 4, 2009, appellant’s attorney requested an oral hearing.
By decision dated January 29, 2010, the Office denied appellant’s request for a hearing
on the grounds that he had previously requested reconsideration and was not entitled to a hearing
as a matter of right.2 It exercised its discretion and determined that the issue in the case could be
addressed equally well through a reconsideration request and the submission of new evidence.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing that the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury.4 These are the

2

The Office hearing representative stated that it was denied the request for a hearing pursuant to 5 U.S.C.
§ 8125(b)(1). This was apparently a misstatement or typographical error.
3

5 U.S.C. §§ 8101-8193.

4

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

2

essential elements of each and every compensation claim regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually experienced
the employment incident at the time, place and in the manner alleged.6 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.7 The Board has held that the mere fact that a
condition manifests itself during a period of employment does not raise an inference that there is
a causal relationship between the two.8
An award of compensation may not be based on surmise, conjecture or speculation.
Neither, the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.9 Causal relationship must be established by
rationalized medical opinion evidence and he failed to submit such evidence.
ANALYSIS -- ISSUE 1
The Board previously determined that appellant was lifting a chain hoist from a trolley on
February 13, 2007. The question of whether an employment incident caused a personal injury can
only be established by probative medical evidence.10 Appellant has not submitted rationalized,
probative medical evidence to establish that the February 13, 2007 employment incident caused
injury to his right shoulder, as alleged
On April 22, 2009 Dr. Fritzhand stated that the level of symptomatology appellant
displayed after the February 13, 2007 work incident demonstrated that he had sustained a torn
right rotator cuff while he was performing his work duties on that date. He opined that this was a
serious work accident which significantly increased appellant’s pain and discomfort.
Dr. Fritzhand stated that there was a reasonable medical certainty that the February 13, 2007
incident caused the marked exacerbation of appellant’s right shoulder pain and that these
symptoms were caused by the pathology shown by the April 30, 2007 MRI scan.
Although Dr. Fritzhand reiterated the diagnosis of appellant’s condition, he did not
adequately address how the right shoulder torn rotator cuff was caused by the February 13, 2007
work incident. In assessing medical evidence, the weight of such evidence is determined by its
reliability, its probative value and its convincing quality; the opportunity for and thoroughness of
5

Victor J. Woodhams, 41 ECAB 345 (1989).

6

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

7

Id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(e).

8

See Joe T. Williams, 44 ECAB 518, 521 (1993).

9

Id.

10

Carlone, supra note 6.

3

examination, the accuracy and completeness of the physician’s knowledge of the facts and
medical history, the care of analysis manifested and the medical rationale expressed in support of
the physician’s opinion, are facts which determine the weight to be given to each individual
report.11 Dr. Fritzhand’s report did not adequately address how removing a chain hoist from a
trolley would cause or contribute to appellant’s right shoulder symptomatology or right rotator cuff
tear. There is some reference in the medical record to right shoulder complaints dating to
September 2004, some two and a half years before the accepted incident. The record does not
contain any medical records related to treatment in 2004 or indicate whether any diagnostic testing
was obtained prior to the April 2007 MRI scan. In turn, Dr. Fritzhand does not provide a full
history of any preexisting right shoulder pathology or treatment. While there is no question
appellant engaged in removing chain hoists from trolleys, Dr. Fritzhand did not fully explain how
the nature of such activity would cause or contribute to the diagnosed rotator cuff injury. These
deficiencies reduce the probative value of his opinion.
The Office advised appellant of the evidence required to establish his claim; however, he
failed to submit an adequate medical opinion based on a fall history. Appellant did not provide a
medical opinion which explains the process through which the February 13, 2007 incident would
have caused or contribute to the rotator cuff condition. Accordingly, he did not establish an injury
on that date. The Office properly denied his claim for compensation.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act, concerning a claimant’s entitlement to a hearing before an
Office hearing representative, states: Before review under section 8128(a) of this title, a
claimant for compensation not satisfied with a decision of the Secretary under subsection (a) of
this section is entitled, on request made within 30 days after the date of the issuance of the
decision, to a hearing on his claim before a representative of the Secretary.12 A hearing is a
review of an adverse decision by an Office hearing representative. Initially, the claimant can
choose between two formats: an oral hearing or a review of the written record. In addition to the
evidence of record, the claimant may submit new evidence to the hearing representative.13 A
request for either an oral hearing or a review of the written record must be submitted, in writing,
within 30 days of the date of the decision for which the hearing is sought.14 A claimant is not
entitled to a hearing or a review of the written record if the request is not made within 30 days of
the date of the decision. The Office has discretion, however, to grant or deny a request that is
made after this 30-day period.15 In such a case, it will determine whether a discretionary hearing
should be granted and, if not, will so advise the claimant with reasons.16

11

Michael S. Mina, 57 ECAB 379 (2006).

12

5 U.S.C. § 8124(b)(1).

13

20 C.F.R. § 10.615.

14

James Smith, 53 ECAB 188 (2001).

15

20 C.F.R. § 10.616(b).

16

James Smith, supra note 14.

4

ANALYSIS -- ISSUE 2
On December 4, 2009 appellant requested an oral hearing and a review of the written
record. Because he had previously requested reconsideration under section 8128 of the Act, he
was not entitled to a hearing as a matter of right under section 8124(b)(1). The Office exercised
its discretion and determined that the issue in the case could be resolved equally well through a
request for reconsideration and the submission of additional evidence. The Board finds that the
Office did not abuse its discretion in denying appellant’s request for an oral hearing in its
January 16, 2009 decision.
CONCLUSION
The Board finds that appellant failed to establish that he sustained a right shoulder injury
on February 13, 2007. The Board finds that the Office did not abuse its discretion in denying
appellant’s request for a hearing.
ORDER
IT IS HEREBY ORDERED THAT the January 29, 2010 and November 25, 2009
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: September 24, 2010
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.A., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Richmond, VA, Employer
__________________________________________

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

Docket No. 09-1678
Issued: June 9, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 12, 2009 appellant filed a timely appeal from the September 24, 2008 and
February 5, 2009 merit decisions of the Office of Workers’ Compensation Programs concerning
a schedule award and 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 appellant met his burden of proof to establish that he has
more than 12 percent permanent impairment of his left leg and 8 percent permanent impairment
of his right leg, for which he received a schedule award; (2) whether appellant received an
$81,263.96 overpayment of compensation; (3) whether the Office abused its discretion by
refusing to waive recovery of the overpayment; and (4) whether the Office properly required
repayment of the overpayment by deducting $200.00 from appellant’s compensation payments
every four weeks.

FACTUAL HISTORY
The Office accepted on April 9, 1996 that appellant, then a 43-year-old special agent,
sustained a herniated disc at left L4-5 and lumbar radiculitis due to lifting a box of papers.
Appellant received compensation from the Office for periods of disability.1
On June 30, 2003 Dr. David Weiss, an attending osteopath and Board-certified
orthopedic surgeon, determined that appellant had an 18 percent permanent impairment of his
right arm, a 22 percent permanent impairment of his left leg and an 11 percent permanent
impairment of his right leg. He detailed appellant’s medical history and stated that he
complained of daily pain and stiffness in his low back and right shoulder, weakness in his right
arm and numbness, tingling and pain in his legs, left greater than right. On physical
examination, appellant had tenderness at the tip of the right acromion and the acromioclavicular
point tenderness. Range of motion showed flexion of 130 degrees, abduction of 110 degrees,
adduction of 45 degrees and external rotation of 75 degrees. Dr. Weiss indicated that appellant
had crepitance of the acromioclavicular joint. Sensory examination revealed a perceived sensory
deficit over the L4, L5 and S1 dermatomes of the left leg and over the L4 and S1 dermatomes of
the right leg. The gastrocnemius circumferential measurements were 48 centimeters on the right
and 47 centimeters on the left.
Dr. Weiss determined that, under the standards of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (5th ed. 2001), appellant had a six percent
impairment due to limited right shoulder motion, comprised of a three percent impairment for
limited right shoulder flexion and three percent impairment for limited right shoulder abduction.
Dr. Weiss combined this 6 percent value, using the Combined Values Chart on page 604 of the
A.M.A., Guides, with 10 percent impairment for his right distal clavicle resection acromioplasty
to equal 15 percent impairment of the right arm. He then combined the 15 percent impairment
rating with 3 percent rating for pain2 to conclude that appellant had 18 percent impairment of his
right arm. Dr. Weiss stated that appellant had eight percent impairment of his left leg due to his
left calf atrophy, four percent impairment of his left leg due to sensory deficit associated with the
L4 nerve root, four percent impairment of his left leg due to sensory deficit associated with the
L5 nerve root and four percent impairment of his left leg due to sensory deficit associated with
the S1 nerve root.3 He added the sensory losses to equal 12 percent and combined this value
with the 8 percent rating for atrophy to equal 19 percent. Dr. Weiss then combined the 19
percent value with 3 percent impairment rating for pain to equal 22 percent impairment of
1

In connection with another claim, the Office accepted that on October 2, 2001 appellant sustained a torn labrum
of his right shoulder when an elevator closed on his right shoulder at work. On July 10, 2002 appellant underwent
arthroscopic surgery of his right shoulder including debridement of his torn anterior labrum, subacromial
decompression, anterior acriomioplasty and bursectomy. In connection with the right shoulder injury, the Office
issued a decision on February 10, 2004 granting appellant a schedule award for 18 percent permanent impairment of
his right arm.
2

Dr. Weiss indicated that his pain ratings were based on Figure 18-1 on page 574 of the A.M.A., Guides.

3

Dr. Weiss derived the atrophy rating from Table 17-6 on page 530 of the A.M.A., Guides and the sensory loss
ratings from Tables 15-15 and 15-18 on page 424. It appears that he determined that appellant had a Grade 2 (80
percent) sensory loss in connection with his left L4, L5 and S1 nerves. See A.M.A., Guides 424, Table 15-15.

2

appellant’s left leg. Dr. Weiss stated that appellant had four percent impairment of his right leg
due to sensory deficit associated with the L4 nerve root and a four percent impairment of his
right leg due to sensory deficit associated with the S1 nerve root.4 He added these values to
equal 8 percent and then combined the 8 percent value with a 3 percent impairment rating for
pain to equal 11 percent impairment of appellant’s right leg.
Appellant filed a claim for a schedule award related to his accepted conditions. In
January 2004 an Office medical adviser reviewed the medical evidence, including the June 30,
2003 report of Dr. Weiss, and concluded that appellant had an 18 percent permanent impairment
of his right arm and 22 percent permanent impairment of his left leg. He indicated that the 18
percent impairment of the right arm was calculated by combining 10 percent impairment rating
for the right acromioplasty with 3 percent rating and 6 percent rating for limited right shoulder
motion (comprised of 3 percent impairment for limited right shoulder flexion and 3 percent
impairment for limited right shoulder abduction). The 22 percent impairment of appellant’s left
leg was calculated by combining 8 percent impairment for left leg atrophy, 12 percent
impairment for sensory loss associated with the L4, L5 and S1 nerves and 3 percent impairment
for pain.
On March 16, 2004 the Office granted appellant a schedule award for 40 percent
permanent impairment of his legs. The award ran for 115.2 weeks from June 30, 2003 to
September 13, 2005.
On June 7, 2007 another Office medical adviser reviewed the medical evidence,
including the June 30, 2003 report of Dr. Weiss, and concluded that appellant had 12 percent
permanent impairment of his left leg and 8 percent permanent impairment of his right leg. The
Office medical adviser stated that the 12 percent impairment of appellant’s left leg was
comprised of 4 percent impairment due to sensory deficit associated with the left L4 nerve root,
4 percent impairment due to sensory deficit associated with the left L5 nerve root and 4 percent
impairment due to sensory deficit associated with the left S1 nerve root. The eight percent
impairment of appellant’s right leg was comprised of four percent impairment due to sensory
deficit associated with the right L4 nerve root and four percent impairment due to sensory deficit
associated with the right S1 nerve root. The Office determined that the three percent pain ratings
for each leg were not warranted under Chapter 18 of the A.M.A., Guides and that Table 17-2
prohibited the combination of 8 percent rating for left-sided muscle atrophy with the 12 percent
rating for left-sided peripheral nerve injury.
In September 21, 2007 decision, the Office granted appellant a “corrected” schedule
award for 12 percent permanent impairment of his left leg and 8 percent permanent impairment
of his right leg. The award ran for 57.6 weeks from June 30, 2003 to August 6, 2004.
In a November 5, 2007 notice, the Office advised appellant of its preliminary
determination that he received an $89,489.71 overpayment of compensation. It indicated that
appellant received schedule award benefits in the amount of $182,226.96 for the period June 30,
2003 to October 15, 2004 which was based on a 40 percent impairment rating of his lower
4

It appears that Dr. Weiss determined that appellant had a Grade 2 (80 percent) sensory loss in connection with his
right L4 and S1 nerves. See A.M.A., Guides 424, Table 15-15.

3

extremities. The Office determined that appellant was only entitled to receive schedule award
benefits in the amount of $92,737.26 for the period June 30, 2003 to August 6, 2004 which were
based on 20 percent impairment rating of his lower extremities.5 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 informed appellant that he could submit additional
evidence in writing or at prerecoupment hearing, but that a prerecoupment hearing must be
requested within 30 days of the date of the written notice of overpayment. The Office requested
that appellant complete and return an enclosed financial information questionnaire within 30
days even if he was not requesting waiver of the overpayment.
Appellant requested a hearing before an Office hearing representative. At the January 16,
2008 hearing, appellant argued that the Office made an improper determination regarding his
entitlement to schedule award compensation. He claimed that there was a conflict in the medical
evidence between the June 30, 2003 report of Dr. Weiss and the June 7, 2007 evaluation of the
Office medical adviser. Appellant claimed that overpayment found by the Office should be
waived because he detrimentally relied on the extra monies he received to buy a Florida
property. He alleged that he sustained a $90,000.00 loss on the property as a result of the current
market value of that property. Appellant also alleged that he loaned monies that he otherwise
would not have loaned.6
In a March 12, 2008 decision, the Office hearing representative affirmed the Office’s
September 21, 2007 decision finding that appellant had 12 percent permanent impairment of his
left leg and 8 percent permanent impairment of his right leg. The Office hearing representative
determined that the evidence established that appellant received a $89,489.71 overpayment of
compensation because he received schedule award benefits in the amount of $182,226.96 for the
period June 30, 2003 to October 15, 2004 (based on 40 percent impairment rating of his lower
extremities) but was only entitled to receive $92,737.26 for the period June 30, 2003 to August 6,
2004 (based on 20 percent impairment rating of his lower extremities). He found that the
overpayment should be reduced to $81,263.96 under Office procedure concerning debt
compromise because recovery of the overpayment in full with five percent interest would exceed
appellant’s life expectancy.7
The Office hearing representative found that appellant was not at fault in the creation of
the overpayment but that the overpayment was not subject to waiver. He indicated that appellant
listed an asset in the form of a second home in New Jersey which was worth $71,500.00 after
mortgages and other expenses were deducted. The Office hearing representative noted that
5

The Office indicated that, based on the June 7, 2007 evaluation of an Office medical adviser, it was determined
that appellant had 12 percent permanent impairment of his left leg and 8 percent permanent impairment of his right
leg. It then issued its September 21, 2007 decision granting a schedule award in the correct amount.
6

Appellant submitted a completed financial information questionnaire and various financial documents. His
listed monthly income of $9,134.00 and monthly expenses of $8,624.00. He also listed an asset in the form of a
second home in New Jersey which was worth $71,500.00 after mortgages and other expenses were deducted.
7

See Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Debt Liquidation, Chapter 6.300.6
(May 2004).

4

appellant listed monthly income of $9,134.00 and monthly expenses of $8,624.00. He stated that
after deducting expenses which he felt were not ordinary and necessary (such as those related to
cable television and entertainment costs) that appellant’s monthly income exceeded his monthly
expenses by $592.00. The Office hearing representative further found that appellant had not
detrimentally relied on the overpayment amount. He stated that appellant had not shown that he
would not have bought the property in Florida if he had not received the extra monies from the
overpayment and noted that he had not suffered a loss in connection with the home because he
had not yet sold it.8 For these reasons, the Office hearing representative found that appellant
failed to establish that recovery of the overpayment in compensation would defeat the purpose of
the Act or be against equity and good conscience. He required repayment of the overpayment by
deducting $592.00 from appellant’s compensation payments every four weeks.
Appellant submitted additional financial records documenting his expenses. In a
September 24, 2008 decision, the Office affirmed its March 12, 2008 overpayment determination
with respect to the fact, amount and waiver issues.9 It modified the method of overpayment
recovery issue by reducing appellant’s required payments every four weeks to $200.00. The
Office considered the new financial information submitted by appellant in reaching this
determination.
Appellant requested reconsideration and presented arguments concerning his claim of
detrimental reliance. He clarified that he actually made gifts of monies, rather than loans, in
reliance on the overpayment amounts he received. Appellant asserted that he needed more than
$61,000.00 of cash in hand before he could sell his property in Florida. In a February 5, 2009
decision, the Office affirmed its September 24, 2008 decision.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act10 and its
implementing regulations11 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides (5th ed. 2001) has been
adopted by the implementing regulations as the appropriate standard for evaluating schedule
losses.12 Chapter 18 of the A.M.A., Guides should not be used to rate pain-related impairments
8

It appears from the record that appellant lives in the home that he purchased in Florida.

9

The Office again determined that the overpayment was created by the fact that appellant was only entitled to
receive schedule award compensation for a 12 percent impairment of his left leg and an 8 percent impairment of his
right leg.
10

5 U.S.C. § 8107.

11

20 C.F.R. § 10.404 (1999).

12

Id.

5

for any condition that can be adequately rated on the basis of the body and organ impairment
systems given in other chapters of the A.M.A., Guides.13 Table 17-2 of the A.M.A., Guides
(Guide to the Appropriate Combination of Evaluation Methods) provides that it is not
permissible to combine a value for impairment due to a peripheral nerve injury with a value for
impairment due to muscle atrophy.14
ANALYSIS -- ISSUE 1
The Board finds that the Office properly determined that appellant did not meet his
burden of proof to establish that he has more than 12 percent permanent impairment of his left
leg and 8 percent permanent impairment of his right leg, for which he received a schedule award.
The only proper assessment of appellant’s lower extremity impairment is the June 7,
2007 evaluation of the Office medical adviser who reviewed the medical evidence, including the
June 30, 2003 report of Dr. Weiss, an attending osteopath and Board-certified orthopedic
surgeon, and concluded that appellant had 12 percent permanent impairment of his left leg and 8
percent permanent impairment of his right leg. The Office medical adviser properly found that
the 12 percent impairment of appellant’s left leg was comprised of 4 percent impairment due to
sensory deficit associated with the left L4 nerve root, 4 percent impairment due to sensory deficit
associated with the left L5 nerve root and 4 percent impairment due to sensory deficit associated
with the S1 nerve root. He also properly determined that eight percent impairment of appellant’s
right leg was comprised of four percent impairment due to sensory deficit associated with the
right L4 nerve root and four percent impairment due to sensory deficit associated with the right
S1 nerve root.15
On appeal, appellant’s attorney alleged that there was a conflict in the medical evidence
between the June 7, 2007 evaluation of the Office medical adviser and the June 30, 2003 report
of Dr. Weiss. However, the Office medical adviser properly identified errors in Dr. Weiss’
impairment rating which reduced the total impairment of appellant’s lower extremities to 12
percent in the left leg and 8 percent in the right leg. Dr. Weiss combined 8 percent rating for
left-sided muscle atrophy with the 12 percent rating for left-sided peripheral nerve injury.
However, the Office medical adviser noted that Table 17-2 on page 526 of the A.M.A., Guides
provides that it is not permissible to combine a value for impairment due to a peripheral nerve
injury with a value for impairment due to muscle atrophy.16 Dr. Weiss also included pain-related
13

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700 Exhibit 4
(June 2003). See also Philip A. Norulak, 55 ECAB 690 (2004) (a separate pain calculation under Chapter 18 is not
to be used in combination with other methods to measure impairment due to sensory pain as outlined in Chapters 13,
16 and 17 of the fifth edition of the A.M.A., Guides).
14

A.M.A., Guides 526, Table 17-2.

15

The maximum value for sensory loss associated with the L4, L5 and S1 nerves is five percent for each nerve.
Given that the Office medical adviser found that appellant had a 4 percent sensory loss impairment in each identified
nerve on the left and right, it appears that it was determined that appellant had a Grade 2 (80 percent) sensory loss in
connection with his left L4, L5 and S1 nerves and his right L4 and S1 nerves. The Board notes that this assessment
seems appropriate given that appellant’s sensory loss prevented some activities. See A.M.A., Guides 424, Tables 15-15
and 15-18.
16

See supra note 11.

6

impairment ratings of three percent for each leg. He did not adequately explain how these
ratings were derived in accordance with the standards of the A.M.A., Guides and the Office
medical adviser properly excluded them. For these reasons, appellant did not show that he has
more than 12 percent permanent impairment of his left leg and 8 percent permanent impairment
of his right leg.
LEGAL PRECEDENT -- ISSUE 2
Section 8102(a) of the Act 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.17 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.”18
Section 8116(a) of the Act provides that while an employee is receiving compensation or
if he has been paid a lump sum in commutation of installment payments until the expiration of
the period during which the installment payments would have continued, the employee may not
receive salary, pay or remuneration of any type from the United States, except in limited
specified instances.19
ANALYSIS -- ISSUE 2
In the present case, the report contains evidence which shows that appellant received
schedule award benefits in the amount of $182,226.96 for the period June 30, 2003 to
October 15, 2004 which were based on a 40 percent impairment rating of his lower extremities.
For the reasons explained above, the Office properly determined that appellant was only entitled
to receive schedule award benefits in the amount of $92,737.26 for the period June 30, 2003 to
August 6, 2004 which were based on a combined 20 percent impairment rating of his lower
extremities.20 Therefore, appellant received $89,489.71 in compensation to which he was not
entitled. The Office hearing representative reduced this amount to $81,263.96 under the debt
compromise provisions of Office procedure.21 Therefore, the Office properly determined that
appellant received an $81,263.96 overpayment of compensation.

17

5 U.S.C. § 8102(a).

18

Id. at § 8129(a).

19

Id. at § 8116(a).

20

The Board notes that it does not appear that appellant has contested the Office’s findings about how much
money he received in connection with his schedule awards.
21

See supra note 7.

7

LEGAL PRECEDENT -- ISSUE 3
The waiver or refusal to waive an overpayment of compensation by the Office is a matter
that rests within the Office’s discretion pursuant to statutory guidelines.22 These statutory
guidelines are found in section 8129(b) of the Act which states: “Adjustment or recovery [of an
overpayment] by the United States may not be made when incorrect payment has been made to
an individual who is without fault and when adjustment or recovery would defeat the purpose of
this subchapter or would be against equity and good conscience.”23 If the Office finds a claimant
to be without fault in the matter of an overpayment, then, in accordance with section 8129(b), the
Office may only recover the overpayment if it determined that recovery of the overpayment
would neither defeat the purpose of the Act nor be against equity and good conscience.
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose
of the Act if recovery would cause hardship because the beneficiary needs substantially all of his
income (including compensation benefits) to meet current ordinary and necessary living
expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by
the Office from data provided by the Bureau of Labor Statistics.24 According to 20 C.F.R.
§ 10.437, recovery of an overpayment is considered to be against equity and good conscience
when an individual who received an overpayment would experience severe financial hardship
attempting to repay the debt and when an individual, in reliance on such payments or on notice
that such payments would be made, gives up a valuable right or changes his position for the
worse.25
To establish that a valuable right has been relinquished, it must be shown that the right
was in fact valuable, that it cannot be regained and that the action was based chiefly or solely in
reliance on the payments or on the notice of payment. Donations to charitable causes or
gratuitous transfers of funds to other individuals are not considered relinquishments of valuable
rights.26 An individual must show that he made a decision he otherwise would not have made in
reliance on the overpaid amount and that this decision resulted in a loss.27 Conversion of the

22

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

23

5 U.S.C. § 8129(b).

24

20 C.F.R. § 10.436. An individual is deemed to need substantially all of his monthly income to meet current
and ordinary living expenses if monthly income does not exceed monthly expenses by more than $50.00. Desiderio
Martinez, 55 ECAB 245 (2004). Office procedure provides that assets must not exceed a resource base of $4,800.00
for an individual or $8,000.00 for an individual with a spouse or dependent plus $960.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6(a) (October 2004).
25

20 C.F.R. § 10.437(a), (b); see W.P., 59 ECAB ____ (Docket No. 08-202, issued May 8, 2008).

26

20 C.F.R. § 10.437(b)(1).

27

See Wayne G. Rogers, 54 ECAB 482 (2003); 20 C.F.R. § 10.437(b)(2).

8

overpayment into a different form (such as food, consumer goods, real estate, etc.) from which
the claimant derived some benefit does not constitute loss for this purpose.28
ANALYSIS -- ISSUE 3
As noted earlier, the Office found appellant not at fault for this overpayment, rendering
him eligible for waiver, if repayment would defeat the purpose of the Act or be against equity or
good conscious. Appellant has not established though, that recovery of the overpayment would
defeat the purpose of the Act because he has not shown both that he needs substantially all of his
current income to meet ordinary and necessary living expenses and that his assets do not exceed
the allowable resource base. The record reflects that appellant has an asset in the form of a
second home in New Jersey which was worth $71,500.00 after mortgages and other expenses
were deducted. Therefore, his assets exceed the allowable resources base.29
Because appellant has not met the second prong of the two-prong test of whether
recovery of the overpayment would defeat the purpose of the Act, it is not necessary for the
Office to consider the first prong of the test, i.e., whether appellant’s needs substantially all of his
current income to meet current ordinary and necessary living expenses.
On appeal, appellant’s attorney claimed that overpayment found by the Office should be
waived because appellant detrimentally relied on the extra monies he received to buy a Florida
property. He alleged that appellant sustained a $90,000.00 loss on the property as a result of the
current market value of that property. Appellant’s attorney also alleged that appellant gave away
monies that he otherwise would not have given away.
In this case, appellant does not qualify for waiver under the principle of detrimental
reliance because the evidence does not establish that he gave up a valuable right or changed his
position for the worse in reliance on anticipated payments. Moreover, he has not shown that, if
required to repay the overpayment, he would be in a worse position after repayment than if he
had never received the overpayment at all. With respect to the house he bought in Florida,
appellant has not shown that he would not have bought the property if he had not received the
extra monies from the overpayment and he has not suffered a loss in connection with the house
because he has not yet sold it. Under Office procedure, conversion of the overpayment into a
different form (such as real estate) from which the claimant derived some benefit does not
constitute loss for this purpose. Appellant continues to have the benefit of possession and
ownership of the house.
With respect to appellant’s giving of gifts, Office regulations provide that gratuitous
transfers of funds to other individuals are not considered relinquishments of valuable rights. The
Office properly found that appellant was not entitled to waiver on the grounds that recovery
28

See Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6b(3) (October 2004); K.K., 61 ECAB ____ (Docket No. 09-207, issued October 2, 2009).
29

The record reflects that appellant has at least one dependent and therefore his resource base would be $8,000.00
plus $960.00 for each additional dependent. It is not certain whether appellant has any additional dependents but the
Board notes it is clear that appellant’s assets far exceed his resource base even if he had such additional dependents.

9

would be against equity and good conscience. As appellant failed to establish that recovery of
the overpayment in compensation would defeat the purpose of the Act or be against equity and
good conscience, the Board finds that the Office did not abuse its discretion in denying waiver of
recovery.
Appellant also has not established that recovery of the overpayment would be against
equity and good conscience because he has not shown, for the reasons noted above, that he
would experience severe financial hardship in attempting to repay the debt or that he
relinquished a valuable right or changed his position for the worse in reliance on the payment
which created the overpayment.30
LEGAL PRECEDENT -- ISSUE 4
Section 10.441 of Title 20 of the Code of Federal Regulations provide in pertinent part:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to [the Office] the amount of the
overpayment as soon as the error is discovered or his or her attention is called to
the same. If no refund is made, [the Office] shall decrease later payments of
compensation, taking into account the probable extent of future payments, the rate
of compensation, the financial circumstances of the individual, and any other
relevant factors, so as to minimize any hardship.”31
ANALYSIS -- ISSUE 4
The record supports that, in requiring repayment of the overpayment by deducting
$200.00 from appellant’s compensation payments every four weeks, the Office took into
consideration the financial information submitted by appellant as well as the factors set forth in
section 10.321 and found that this method of recovery would minimize any resulting hardship on
appellant. Therefore, the Office properly required repayment of the overpayment by deducting
$200.00 from appellant’s compensation payments every four weeks.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he has
more than 12 percent permanent impairment of his left leg and 8 percent permanent impairment
of his right leg, for which he received a schedule award. The Board further finds that appellant
received an $81,263.96 overpayment of compensation, was not at fault but that the Office did not
abuse its discretion by refusing to waive recovery of the overpayment. The Office properly
required repayment of the overpayment by deducting $200.00 from appellant’s compensation
payments every four weeks.

30

See William J. Murphy, 41 ECAB 569, 571-72 (1989).

31

20 C.F.R. § 10.441(a); see Donald R. Schueler, 39 ECAB 1056, 1062 (1988).

10

ORDER
IT IS HEREBY ORDERED THAT the February 5, 2009 and September 24, 2008
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: June 9, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11