United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.A., Appellant
and
DEPARTMENT OF THE ARMY, TANKAUTOMOTIVE & ARMAMENTS COMMAND,
ANNISTON ARMY DEPOT, AL, Employer
__________________________________________

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

Docket No. 19-0747
Issued: September 16, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 11, 2019 appellant filed a timely appeal from a September 24, 2018 merit
decision and a January 25, 2019 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.2
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish greater than
56 percent binaural (both ears) hearing loss, for which he previously received schedule award
1
2

5 U.S.C. § 8101 et seq.

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

compensation; and (2) whether OWCP properly denied appellant’s request for a review of the
written record before an OWCP hearing representative as untimely filed pursuant to 5 U.S.C.
§ 8124(b).
FACTUAL HISTORY
On January 7, 2016 appellant, then a 60-year-old painting worker, filed an occupational
disease claim (Form CA-2) alleging hearing loss due to factors of his federal employment on or
about May 1, 2013.3 After developing the factual and medical evidence of record, OWCP
accepted his claim for binaural sensorineural hearing loss.
On September 27, 2016 appellant filed a claim for a schedule award (Form CA-7). By
decision dated November 30, 2016, OWCP granted a schedule award for 55 percent permanent
binaural hearing loss. The award ran for 110 weeks from May 11, 2016 to June 29, 2018.
An August 20, 2018 audiogram demonstrated testing at the frequencies of 500, 1,000,
2,000, and 3,000 Hertz (Hz), which revealed the following: right ear -50, 55, 70, and 70 decibels
(dBs), respectively; and left ear -60, 60, 75, and 75 dBs, respectively.
On August 23, 2018 Dr. Jeffrey M. Israel, a Board-certified otolaryngologist acting as a
district medical adviser (DMA), reviewed the August 20, 2018 audiogram and related that the test
findings were suggestive of a sensorineural hearing loss due, at least in part, to noise-induced
work-related acoustic trauma. He opined that the audiometric test results were representative of
appellant’s hearing sensitivity. Utilizing the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),4 the DMA calculated that
appellant had 54.375 percent right monaural hearing loss and 63.75 percent left monaural hearing
loss for a total binaural hearing loss of 55.9 percent. He noted that appellant had previously
received an award of 54.7 percent for binaural hearing loss. The DMA determined that 55.9
percent minus 54.7 percent was equal to 1.2 percent, the adjusted award. He reported that appellant
had reached maximum medical improvement (MMI) as of the date of his latest audiogram.
In a September 17, 2018 report, Mary Ann Gieger, a hearing instrument specialist, noted
that on August 20, 2018 appellant underwent an audiogram which revealed 58 percent pure-tone
average for the right ear and 65 percent pure-tone average for the left ear. The report also included
the results of appellant’s August 20, 2018 audiogram, which Ms. Gieger signed.
OWCP referred the case back to its DMA to consider Ms. Gieger’s September 17, 2018
report. In a September 19, 2018 supplemental report, the DMA indicated that the August 20, 2018
audiogram was the same one he evaluated in his prior report. He reiterated his previous finding
of 55.9 percent binaural hearing loss, with an August 20, 2018 date of MMI.

3

The employing establishment provided occupational noise exposure data covering the period 2003 through 2013.
It also controverted the claim arguing that appellant’s hearing loss was not likely caused by his employment exposure.
4

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

2

By decision dated September 24, 2018, OWCP granted appellant a schedule award for an
additional one percent permanent binaural hearing loss, for a total binaural hearing loss of 56
percent. The additional one percent award covered a two-week period from August 20 to
September 2, 2018.
On January 10, 2019 appellant requested a review of the written record by a representative
of OWCP’s Branch of Hearings and Review.
By decision dated January 25, 2019, an OWCP hearing representative determined that
appellant was not entitled to a review of the written record as a matter of right because his request
was untimely filed. He also denied a discretionary hearing finding that the contested issue could
equally well be addressed by appellant requesting reconsideration and providing new evidence or
argument to establish that he was entitled to a greater schedule award for his binaural hearing loss.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for loss
or loss of use of scheduled members or functions of the body. FECA, however, does not specify
the manner by which the percentage loss of a member, function or organ shall be determined. The
method used in making such determination is a matter which rests in the discretion of OWCP. For
consistent results and to ensure equal justice under the law, the Board has authorized the use of a
single set of tables so that there may be a uniform standards applicable to all claimants. OWCP
evaluates the degree of permanent impairment according to the standards set forth in the specified
edition of the A.M.A., Guides.7 Effective May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2009).8 The Board has approved
OWCP’s use 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.9
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.10 Using the frequencies of 500, 1,000, 2,000 and 3,000 Hz, the losses at each
frequency are added up and averaged. Then, the “fence” of 25 decibels is deducted because, as
the A.M.A., Guides points out, losses below 25 dB result in no impairment in the ability to hear

5

5 U.S.C. §§ 8101-8193, 8107.

6

20 C.F.R. § 10.404.

7

Id.

8

A.M.A., Guides (6th ed. 2009); 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).
9

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

10
A.G., Docket No. 17-1778 (issued December 18, 2018); E.S., 59 ECAB 249 (2007); Reynaldo R. Lichetenberger,
52 ECAB 462 (2001).

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everyday speech under everyday conditions.11 The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied by
five, and then added to the greater loss and the total is divided by six to arrive at the amount of the
binaural hearing loss.12
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish greater than 56
percent binaural hearing loss, for which he previously received schedule award compensation.
On August 23, 2018 a DMA reviewed the August 20, 2018 audiogram and opined that
appellant’s hearing loss was due, at least in part, to his workplace noise exposure. Testing for the
right ear at the frequency levels of 500, 1,000, 2,000, and 3,000 Hz revealed decibel losses of 50,
55, 70, and 70, which totaled 245 dBs. Appellant’s left ear hearing losses were 60, 60, 75, and 75,
which totaled 270. The right ear hearing loss resulted in an average loss of 61.25 (245 ÷ 4) dBs,
and the left ear loss averaged 67.5 (270 ÷ 4) dBs. After subtracting the 25 dB fence, the right ear
loss was 36.25, which was then multiplied by 1.5 to equal 54.38 percent hearing loss for the right
ear. Applying the same formula to the left ear (67.5 – 25 = 42.5 x 1.5), resulted in 63.75 dBs. The
DMA then multiplied the 54.38 percent monaural hearing loss for the right ear by 5, added the
63.75 percent left ear monaural hearing loss, divided the total by 6 as directed by the A.M.A.,
Guides, resulting in 55.9 percent binaural hearing loss.13 The Board finds that the DMA properly
calculated the percentage of impairment for appellant’s binaural hearing loss in accordance with
the A.M.A., Guides.14 OWCP rounded-up the rating to the nearest whole number (56 percent),
and reduced the current total permanent impairment by the prior binaural hearing loss award (55
percent).15
The Board finds that there is no current medical evidence of record supporting that
appellant has a ratable hearing loss greater than the 56 percent binaural hearing loss previously
awarded. It is appellant’s burden of proof to submit evidence of additional hearing loss under
OWCP’s standardized procedures for rating hearing impairment than that previously awarded
under OWCP’s standardized procedures for rating hearing loss.16 He has not submitted such
evidence in support of his claim.

11

A.M.A., Guides 250 (6th ed. 2009).

12

Id. at 251.

13

R.F., Docket No. 18-0810 (issued February 27, 2019); W.C., Docket No. 18-0290 (issued July 13, 2018).

14

A.G., supra note 10.

15
The Board notes OWCP’s policy to round the calculated percentage of impairment to the nearest whole number.
See V.M., Docket No. 18-1800 (issued April 23, 2019); J.H., Docket No. 08-2432 (issued June 15, 2009); Robert E.
Cullison, 55 ECAB 570 (2004). See also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,
Chapter 3.700.3(b) (January 2010).
16

J.W., Docket No. 17-1339 (issued August 21, 2018); J.B., Docket No. 15-1474 (issued March 4, 2016).

4

On appeal appellant alleges that he was entitled to schedule awards for 58 percent hearing
loss for the right ear and 60 percent hearing loss for the left ear. However, as explained above, the
DMA properly calculated that appellant had a total binaural hearing loss of 56 percent in
accordance with the A.M.A., Guides.
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides: “Before review under section 8128(a) of this title
[relating to reconsideration], 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 [or her] claim before a representative of
the Secretary.”17
Section 10.615 of Title 20 of the Code of Federal Regulations provides, “A hearing is a
review of an adverse decision by a hearing representative. Initially, the claimant can choose
between two formats: an oral hearing or a review of the written record.”18 The hearing request
must be sent within 30 days (as determined by postmark or other carrier’s date marking) of the
date of the decision for which the hearing is sought.19 However, OWCP has discretion to grant or
deny a request that is made after this 30-day period.20 In such a case, it will determine whether to
grant a discretionary hearing and, if not, will so advise the claimant with reasons.21
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s January 10, 2019 request for a
review of the written record before an OWCP hearing representative as untimely filed pursuant to
5 U.S.C. § 8124(b).
Appellant had 30 days from OWCP’s September 24, 2018 merit decision to request a
review of the written record before a representative of OWCP’s Branch of Hearings and Review.
As appellant’s hearing request was dated January 10, 2019, more than 30 days after OWCP’s
September 24, 2018 decision, it was untimely filed and he was, therefore, not entitled to a review

17

5 U.S.C. § 8124(b)(1).

18

20 C.F.R. § 10.615.

19

Id. at § 10.616(a).

20

See T.L., Docket No. 19-0028 (issued April 26, 2019); G.W., Docket No. 10-0782 (issued April 23, 2010); James
Smith, 53 ECAB 188, 191-92 (2001).
21

James Smith, id.

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of the written record as a matter of right.22 Section 8124(b)(1) is unequivocal on the time limitation
for requesting a hearing.23
The Board further finds that OWCP properly exercised its discretion in denying appellant’s
request for a review of the written record by determining that the issue in the case could equally
well be addressed by requesting reconsideration and submitting new evidence or argument relevant
to the issue of his schedule award.24 The Board has held that the only limitation on OWCP’s
authority is reasonableness, and an abuse of discretion is generally shown through proof of
manifest error, clearly unreasonable exercise of judgment, or actions taken which are contrary to
both logic and probable deduction from established facts.25 The Board finds that the evidence of
record does not indicate that OWCP abused its discretion in its denial of appellant’s untimely
request for a review of the written record.
Accordingly, the Board finds that OWCP properly denied appellant’s January 10, 2019
request for a review of the written record as untimely filed pursuant to 5 U.S.C. § 8124(b).26
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish greater than 56
percent binaural hearing loss, for which he previously received schedule award compensation. The
Board also finds that OWCP properly denied appellant’s request for a review of the written record
before an OWCP hearing representative as untimely filed under 5 U.S.C. § 8124(b).

22
Under OWCP’s regulations and procedures, the timeliness of a request for a hearing is determined on the basis
of the postmark of the envelope containing the request. Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings
and Reviews of the Written Record, Chapter 2.1601.4a (October 2011); see also G.S., Docket No. 18-0388 (issued
July 19, 2018).
23
5 U.S.C. § 8124(b)(1); see M.K., Docket No. 19-0428 (issued July 15, 2019); R.H., Docket No. 18-1602 (issued
February 22, 2019); William F. Osborne, 46 ECAB 198 (1994).
24

M.K., id.; M.H., Docket No. 15-0774 (issued June 19, 2015).

25

Id.; Teresa M. Valle, 57 ECAB 542 (2006).

26

Id.; T.L., Docket No. 19-0028 (issued April 26, 2019); R.P., Docket No. 16-0554 (issued May 17, 2016).

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ORDER
IT IS HEREBY ORDERED THAT the January 25, 2019 and September 24, 2018
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: September 16, 2019
Washington, DC

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

Alec J. Koromilas, 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
__________________________________________
K.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Mobile, AL, Employer
__________________________________________

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

Docket No. 08-2059
Issued: April 17, 2009

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 July 21, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated June 20, 2008, denying her claim for
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant sustained a neck or arm injury in the performance of duty
on December 20, 2007.
FACTUAL HISTORY
On December 21, 2007 appellant, then a 39-year-old mail processing clerk, filed a
traumatic injury claim alleging that she sustained a neck and arm injury on December 20, 2007
when “I picked up a tray of mail and was sitting casing mail.” She stopped working on
December 21, 2007. The record indicates that appellant was treated on December 20, 2007 by
Dr. Deanna Crozier, an emergency medicine specialist, who released her to light duty as of

December 24, 2007. In an undated note, Dr. Alain Shain, an internist, stated that appellant was
under his care since December 20, 2007 and could return to work on January 12, 2008.
In a duty status report (Form CA-17) dated December 24, 2007, an internist diagnosed
trapezial arm strain.1 A Form CA-17 dated January 11, 2008 from Dr. Peter Sinks, a
rheumatologist, described findings of acute and subacute neck and arm pain with weakness. In a
January 16, 2008 CA-17 form, a Dr. Shain diagnosed musculoskeletal pain. The typewritten
description of how the injury occurred stated, “casing letter mail, neck popped, right arm pain.”
By undated attending physician’s report (Form CA-20) received by the Office on
February 11, 2008, Dr. Shain diagnosed musculoskeletal pain and checked a box “yes” the
condition was causally related to employment activity. The history of injury provided was “pain
neck [and] right arm.”
In a March 18, 2008 decision, the Office denied the claim for compensation. It found
that the medical evidence was insufficient to establish the claim.
Appellant requested reconsideration of her claim. She stated that on December 20, 2007
she had just picked up a tray of mail, turned around to place it on a ledge and began to case mail
when her neck popped and she felt neck and arm pain. In a March 11, 2008 report, Dr. Shain
stated that appellant was first treated on December 24, 2007 and reported she injured her right
neck and arm at work on December 20, 2007. He noted that appellant had previous neck and
arm pain involving the left arm. Dr. Shain diagnosed pain in the limb and pain in the neck,
stating this was a musculoskeletal injury.
In a report dated April 9, 2008, Dr. Shain stated that appellant “has requested that we add
a specific muscle injury code, which would be 728.9. Appellant has a trapezius muscle strain.
As far as the specifics of the injury, [she] tells me that she was transferring or moving something
at work, and her neck popped.”
By decision dated June 20, 2008, the Office denied modification of the prior decision.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides for the payment of compensation
for “the disability or death of an employee resulting from personal injury sustained while in the
performance of duty.”2 The phrase “sustained while in the performance of duty” in the Act is
regarded as the equivalent of the commonly found requisite in workers’ compensation law of
“arising out of and in the course of employment.”3 An employee seeking benefits under the Act
has the burden of establishing that he or she sustained an injury while in the performance of
duty.4 In order to determine whether an employee actually sustained an injury in the
1

The signature appears to be Dr. Shain, although no other identification is provided.

2

5 U.S.C. § 8102(a).

3

Valerie C. Boward, 50 ECAB 126 (1998).

4

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

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performance of duty, the Office begins with an analysis of whether “fact of injury” has been
established. Generally “fact of injury” consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred. The second
component is whether the employment incident caused a personal injury, and generally this can
be established only by medical evidence.5
The Office’s procedures recognize that a claim may be accepted without a medical report
when the condition is a minor one which can be identified on visual inspection.6 In clear-cut
traumatic injury claims, such as a fall resulting in a broken arm, a physician’s affirmative
statement is sufficient and no rationalized opinion on causal relationship is needed. In all other
traumatic injury claims, a rationalized medical opinion supporting causal relationship is
required.7
Rationalized medical opinion evidence is medical evidence that includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between a diagnosed
condition and the identified employment factor. The opinion of the physician must be based on a
complete factual and medical background, must be 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. The weight of medical
evidence is determined by its reliability, its probative value, its convincing quality, the care of
the analysis manifested and the medical rationale expressed in support of the physician’s
opinion.8
ANALYSIS
Appellant alleged that on December 20, 2007 she picked up a tray of mail, turned and
placed it on a ledge. She began casing mail when she felt a pop in her neck. There is no
contrary evidence and the Office does not contest that the incident occurred as alleged. The
evidence supports that appellant was in the course of employment.
As noted, appellant must also submit rationalized medical evidence on causal relationship
between a diagnosed condition and the employment incident. The initial treatment from
Dr. Crozier did not provide a history or an opinion on causal relationship. The form reports from
Dr. Shain also fail to provide a rationalized medical opinion. While Dr. Shain checked a box
“yes” on causal relationship in a February 11, 2008 Form CA-20, he did not provide a history of
injury or medical rationale to support his opinion on causal relationship. The checking of a box

5

See John J. Carlone, 41 ECAB 354, 357 (1989).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(d) (June 1995).

7

Id.

8

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

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“yes” in a form report, without additional explanation or rationale, is not sufficient to establish
causal relationship.9
In an April 9, 2008 report, Dr. Shain stated only that appellant had requested he add an
additional diagnosis of trapezius muscle strain. The history provided includes a general
statement that appellant was moving something at work, without discussing the specific
allegations. Dr. Shain did not provide a rationalized opinion, based on a complete background,
establishing causal relationship between a trapezius muscle strain or other diagnosed condition
and the December 20, 2007 employment incident. The Board finds that appellant did not meet
her burden to establish that she sustained an injury, as alleged.
CONCLUSION
The medical evidence is not sufficient to establish an injury in the performance of duty
on December 20, 2007.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 20 and March 18, 2008 are affirmed.
Issued: April 17, 2009
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

9

See Barbara J. Williams, 40 ECAB 649, 656 (1989).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Los Angeles, CA,
Employer
__________________________________________

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

Docket No. 12-598
Issued: July 25, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 10, 2012 appellant filed a timely appeal from a January 3, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a three percent left leg and three percent
right leg permanent impairment.
FACTUAL HISTORY
On March 11, 2004 appellant, then a 52-year-old letter carrier, filed an occupational
claim (Form CA-2) alleging that he sustained sciatica as a result of his federal employment. In a
1

5 U.S.C. § 8101 et seq.

narrative statement, he noted repetitive activities such as bending, lifting and stooping. On
May 6, 2004 OWCP accepted the claim for lumbosacral neuritis/radiculitis and bilateral sciatica.
On October 28, 2004 appellant underwent an L4-5 laminectomy surgery. He worked
intermittently in a part-time light-duty position then stopped working on April 4, 2007. OWCP
accepted a recurrence of disability commencing April 4, 2007.
Appellant was referred to Dr. John Howard, a Board-certified orthopedic surgeon, for an
opinion as to a permanent impairment under the American Medical Association, Guides to the
Evaluation of Permanent Impairment (sixth edition, hereinafter A.M.A., Guides). In a report
dated October 20, 2011, Dr. Howard provided a history and results on examination. He
identified the sciatic nerve under Table 16-12 of the A.M.A., Guides, finding that appellant had a
mild or moderate sensory deficit, resulting in a default impairment of four percent to each leg.
Dr. Howard found there would be no net adjustment, as the grade modifier for Functional
History (GMFH) was one, the grade modifier for Clinical Studies (GMCS) and the grade
modifier for Physical Examination (GMPE) were not applicable. He concluded that appellant
had a four percent impairment to each leg.
In a report dated December 4, 2011, an OWCP medical adviser reviewed the medical
evidence. He stated that peripheral nerve impairments should be calculated under The Guides
Newsletter July/August 2009. Applying the relevant table for lower extremity impairments, the
default for an L5 spinal nerve moderate sensory deficit was three percent. The medical adviser
found no net adjustment based on the grade modifiers noted by Dr. Howard. With respect to
maximum medical improvement, the medical adviser stated that it occurred on June 23, 2006.2
By decision dated January 3, 2012, OWCP issued a schedule award for a three percent
impairment to each leg. The period of the award was 17.28 weeks from December 18, 2011.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law 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.5 The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6
2

The record contains a report dated June 23, 2006 from Dr. Nicole Pham, a treating physician, stating that
appellant had reached a permanent and stationary status.
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

5

See Ronald R. Kraynak, 53 ECAB 130 (2001); August M. Buffa, 12 ECAB 324 (1961).

6

Supra note 4.

2

For schedule awards after May 1, 2009, the impairment is evaluated under the sixth
edition.7 With respect to peripheral nerve impairments to the upper or lower extremities
resulting from spinal injuries under the sixth edition, OWCP procedures indicate that The Guides
Newsletter “Rating Spinal Nerve Extremity Impairment Using the Sixth Edition”
(July/August 2009) is to be applied.8 Using the tables under this newsletter, the class of
impairment (CDX) is one, and then the default value is determined by identifying the spinal
nerve and the degree of sensory or motor deficit. The default value (grade C) may be adjusted
by using GMFH, Table 16-6, GMPE, Table 16-7 and GMCS, Table 16-8. The adjustment
formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).9
ANALYSIS
In this case, OWCP issued a schedule award for a three percent permanent impairment to
each leg based on the examination findings of Dr. Howard. Although Dr. Howard had applied
Table 16-12 of the A.M.A., Guides, as noted above, it is The Guides Newsletter that must be
used for nerve impairments to the legs from spinal injuries. Under The Guides Newsletter, a
moderate sensory deficit for the L5 nerve is a three percent default impairment. Both
Dr. Howard and the medical adviser found a grade modifier for functional history of one. A
clinical studies grade modifier was not applicable, as there were no relevant clinical studies and
the physical examination grade modifier was not applied as physical examination was used to
determine the default impairment.10 Applying the formula noted above, there is no adjustment
from the grade C impairment of three percent to each leg.
The Board accordingly finds that the probative medical evidence does not establish more
than a three percent permanent impairment to each leg. OWCP’s medical adviser applied The
Guides Newsletter in accord with established procedures.
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 six percent
(three for each leg), he is entitled to six percent of 288 weeks, or 17.28 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.11 In
this case, OWCP’s medical adviser referred to a date of June 23, 2006. Appellant was receiving
compensation for wage loss on and after June 23, 2006, and a claimant may not concurrently

7

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

8

See G.N., Docket No. 10-850 (issued November 12, 2010); see also Federal (FECA) Procedure Manual, Part 3
-- Medical, Schedule Awards, Chapter 3.700 (January 2010). The Guides Newsletter is included as Exhibit 4.
9

A.M.A., Guides 523. The net adjustment is up to +2 (grade E) or -2 (grade A).

10

See id. at 515-16.

11

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

3

receive compensation under a schedule award and wage loss for disability.12 Therefore the
determination to begin the schedule award on December 18, 2011 was not adverse to appellant.
On appeal, appellant stated that he did not understand how the award was reduced from
eight percent, based on Dr. Howard, to a three percent award, when Dr. Howard was the
physician who examined him. The Board notes that appellant received a schedule award for
three percent to each leg, for a total of six percent. The award was based on the examination by
Dr. Howard, but as noted above, Dr. Howard did not apply The Guides Newsletter in accord with
OWCP procedures. The only medical report properly applying The Guides Newsletter was
OWCP’s medical adviser. The Board finds this represented the weight of the medical evidence
as to the percentage of impairment. Appellant may request a schedule award or increased
schedule award based on evidence of a new exposure or medical evidence showing a progression
of an employment-related condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that the evidence does not establish more than a three percent permanent
impairment to each leg.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 3, 2012 is affirmed.
Issued: July 25, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
12

James A. Earle, 51 ECAB 567 (2000).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
DEPARTMENT OF THE NAVY, ARMY
NATIONAL GUARD, Austin, TX, Employer
__________________________________________

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

Docket No. 17-0738
Issued: June 12, 2017

Case Submitted on the Record

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

JURISDICTION
On February 14, 2017 appellant filed a timely appeal from a September 29, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merit decision of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish an injury causally
related to the July 29, 2015 employment incident.
FACTUAL HISTORY
On September 17, 2015 appellant, then a 43-year-old logistics management specialist,
filed a traumatic injury claim (Form CA-1) alleging that on July 29, 2015, he felt acute groin
pain while moving a printer between shelves. He did not stop work.
1

5 U.S.C. § 8101 et seq.

Appellant was treated in the emergency room by Dr. Ann C. Czarnik, Board-certified in
emergency medicine, on July 29, 2015 for groin pain. He was provided discharge instructions
for adult constipation and testicular pain, unclear cause. Dr. Czarnik recommended that
appellant follow up with his primary care provider. Appellant submitted a bill and an
explanation of benefits, dated July 8, 2016, for treatment on July 29, 2015.2
By letter dated August 29, 2016, OWCP advised appellant of the type of evidence needed
to establish his claim, particularly requesting that he submit a physician’s reasoned opinion
addressing the relationship between his claimed condition and specific employment factors. It
noted that the current medical evidence did not contain diagnoses. OWCP further noted that
medical evidence must be submitted by a qualified physician and that a physician assistant is not
considered a qualified physician under FECA.
Appellant submitted an emergency physician record from Dr. Czarnik for male
genitourinary problems dated July 29, 2015 where he was treated for groin pain. He reported
sitting at his desk and experiencing an acute onset of groin and testicular pain that was
intermittent and worse when standing and walking. Appellant indicated that he never
experienced this sort of pain before. Dr. Czarnik noted symptoms of left testicle pain. She
diagnosed scrotal/testicular pain, nonspecific and constipation. Dr. Czarnik advised that
appellant’s condition improved and recommended follow up with the primary care provider.
A triage nursing note dated July 29, 2015 indicated a history of left lower quadrant pelvic
pain near the groin. Appellant reported sitting in a chair when he had a sudden onset of
intermittent pinching pain.
A computerized tomography scan of the abdomen dated July 29, 2015 revealed three
clustered large calculi, nonobstructive at the upper pole of the kidney, moderate retained fecal
content throughout the colon, and uncharacterized hypodensity within the liver representing a
cyst or hemangioma. An ultrasound of the testicular/scrotum dated July 29, 2015 revealed small
bilateral epididymal cysts, otherwise unremarkable. A urinalysis revealed no abnormalities.
In a September 29, 2016 decision, OWCP denied the claim finding that appellant failed to
submit any medical evidence containing a medical diagnosis in connection with the accepted
work incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation of FECA, that an injury was sustained in the performance of duty as alleged, and that
any disability and/or specific condition for which compensation is claimed are causally related to

2

Appellant also provided was an October 19, 2014 emergency physician record for a condition unrelated to the
claimed groin injury.

2

the employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.4
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, 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.5
ANALYSIS
It is undisputed that on July 29, 2015, while working as a logistics management
specialist, appellant moved a printer and placed it on a shelf. However, the Board finds that he
failed to submit sufficient medical evidence to establish that this work incident caused or
aggravated a diagnosed medical condition. In a letter dated August 29, 2016, OWCP requested
that appellant submit a comprehensive medical report from his treating physician which included
a reasoned explanation as to how the accepted work incident had caused his claimed injury.
Appellant submitted a July 29, 2015 report from Dr. Czarnik who treated him for groin
pain. He was provided discharge instructions for adult constipation and testicular pain, unclear
cause. In an emergency physician record for male genitourinary problems dated July 29, 2015,
Dr. Czarnik treated appellant for groin pain. Appellant reported sitting at his desk and
experiencing an acute onset of groin and testicular pain that was intermittent and worse when
standing and walking. She diagnosed scrotal/testicular pain, nonspecific and constipation and
recommended follow up with the primary care provider. However, Dr. Czarnik merely repeated
the history of injury as reported by appellant without providing her own opinion regarding
whether appellant’s condition was work related.6 Furthermore, Dr. Czarnik failed to provide a
rationalized opinion regarding causal relationship between appellant’s diagnosed conditions and

3

Gary J. Watling, 52 ECAB 357 (2001).

4

T.H., 59 ECAB 388 (2008).

5

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

6

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).

3

the accepted work incident.7 Therefore, these reports are insufficient to meet appellant’s burden
of proof.
Appellant submitted a triage nursing note dated July 29, 2015. However, the Board has
held that treatment notes signed by a nurse are not considered medical evidence as nurses are not
physicians under FECA and are not competent to render a medical opinion under FECA.8
The remainder of the medical evidence is of limited probative value as it fails to provide
a physician’s opinion on causal relationship between the accepted work incident and his
diagnosed medical conditions.9 For this reason, this evidence is insufficient to meet his burden
of proof.
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. Causal relationship must be established by
rationalized medical opinion evidence.10 Appellant failed to submit such evidence and therefore
has not met his burden of proof.
On appeal appellant contends that he submitted sufficient evidence that he sustained a
groin injury causally related to moving a printer at work on July 29, 2015. He noted having to
pay medical bills in excess of $1,000.00. As explained above, the medical evidence of record
does not establish a diagnosed medical condition causally related to the accepted work incident.
Appellant has not submitted a physician’s report which describes how the July 29, 2015 incident
caused or aggravated a groin injury.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an injury
causally related to the July 29, 2015 employment incident.
7

Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
8

See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a ‘‘physician’’ as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by State law). See also B.B., Docket No. 091858 (issued April 16, 2010) (nurse’s reports are of no probative medical value as nurses are not considered
physicians under FECA).
9

See S.E., Docket No. 08-2214 (issued May 6, 2009) (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).
10

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

4

ORDER
IT IS HEREBY ORDERED THAT the September 29, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 12, 2017
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Sioux Falls, SD, Employer
__________________________________________
Appearances:
John S. Evangelisti, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 17-0969
Issued: March 13, 2018

Case Submitted on the Record

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

On April 3, 2017 appellant filed a timely appeal from a March 8, 2017 decision of the
Office of Workers’ Compensation Programs (OWCP). The Board assigned Docket No. 17-0969.2
The Board, having duly considered the matter, notes that the case must be remanded to
OWCP.
This case has previously been before the Board. In its November 16, 2016 decision, the
Board set aside OWCP’s June 25, October 7, and November 9, 2015 decisions and remanded the
1

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

Appellant timely requested oral argument before the Board pursuant to 20 C.F.R. § 501.5(b). By order dated
December 8, 2017, the Board exercised its discretion and denied the request for oral argument as the issue on appeal
could be fully addressed on the record. Order Denying Request for Oral Argument, Docket No. 17-0969 (issued
December 8, 2017).

case to OWCP for further development.3 The Board noted that appellant had claimed that her
federal employment duties through 2007 had contributed to her neck and left shoulder conditions,
and as such, discussion of those conditions in Dr. Rook’s April 2, 2015 report did not render the
report “moot.” On remand, the Board ordered that OWCP properly review Dr. Rook’s April 2,
2015 report in light of these findings.
In its March 8, 2017 decision, OWCP found that appellant had not submitted sufficient
evidence to establish causal relationship between factors of her federal employment post-2007 and
her diagnosed neck and shoulder conditions. Its March 8, 2017 decision did not properly analyze
Dr. Rook’s April 2, 2015 report in light of the Board’s finding that factors of appellant’s federal
employment through 2007 were relevant to appellant’s claim. Instead, OWCP repeated its prior
finding that Dr. Rook’s report was insufficient to modify the June 25, 2016 decision, because
Dr. Rook reviewed appellant’s federal employment factors from 2006 to 2007.
The Board has final authority to determine questions of fact and law. The Board’s
determinations are binding upon OWCP and must, of necessity, be so accepted and acted upon by
the Director of OWCP.4 A decision of the Board is final upon the expiration of 30 days following
the date of its order and, in the absence of new review by the Director, the subject matter is res
judicata and not subject to further consideration by the Board.5 The Board has already found that
Dr. Rook’s April 2, 2015 should be properly analyzed and that consideration of injuries from 2006
to 2007 did not render it insufficient. OWCP, in its March 8, 2017 decision, found that Dr. Rook’s
April 2, 2015 report was insufficient because it listed employment factors from 2006 to 2007.
As such, OWCP has not issued a decision, which properly reviews Dr. Rook’s April 2,
2015 report as directed by the Board in its November 16, 2016 decision. The case is therefore
remanded to OWCP for issuance of such a merit decision.

3

K.B., Docket No. 16-0203 (issued November 16, 2016).

4

See Paul Raymond Kuyoth, 27 ECAB 498, 503-04 (1976); Anthony Greco, 3 ECAB 84 (1949). See also Frank W.
White, 42 ECAB 693 (1991) (the Board’s order in a prior appeal imposed an obligation on the Director to take
particular actions as directed). See L.C., Docket No. 09-1816 (issued March 17, 2010) (OWCP did not follow the
Board’s instructions); T.S., Docket No. 13-2135 (issued April 3, 2014).
5

See 20 C.F.R. § 501.6(d); Clinton E. Anthony, Jr., 49 ECAB 476, 479 (1998). There is no indication that a petition
for reconsideration was filed within 30 days of the issuance of the Board’s November 16, 2016 decision and the
decision became final after 30 days had elapsed. 20 C.F.R. § 501.6(d).

2

IT IS HEREBY ORDERED THAT the March 8, 2017 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this order of the Board.
Issued: March 13, 2018
Washington, DC

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

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
DEPARTMENT OF THE ARMY, WHITE
SANDS MISSILE RANGE, White Sands, NM,
Employer
__________________________________________

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

Docket No. 14-252
Issued: May 20, 2014

Case Submitted on the Record

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

JURISDICTION
On October 31, 2013 appellant filed a timely appeal from an August 15, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP) regarding an overpayment
of 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.
ISSUES
The issues are: (1) whether OWCP properly found an overpayment of $6,616.87; and
(2) whether OWCP properly denied waiver of recovery of the overpayment.
On appeal, appellant contends that OWCP should have waived recovery of the
overpayment as he was not at fault in its creation.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on or before July 16, 2009 appellant, then a 58-year-old high
voltage electrician, sustained a bilateral sensorineural hearing loss due to hazardous noise
exposure at work. He submitted annual employing establishment audiograms from 1992 to 2004
obtained as part of an industrial hygiene program. The audiograms did not demonstrate a ratable
hearing loss.
OWCP obtained a second opinion from Dr. Ronald Blumenfeld, a Board-certified
otolaryngologist. A January 6, 2010 audiogram performed for Dr. Blumenfeld at the frequency
levels of 500, 1,000, 2,000 and 3,000 cycles per second (cps) revealed decibel (dB) losses of 5,
10, 5 and 20 in the right ear and 5, 5, 5 and 20 in the left ear. Referring to the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides), Dr. Blumenfeld found that appellant did not have a ratable hearing loss in either ear as
the thresholds in each ear at 500, 1000, 2000 and 3,000 cps totaled less than 100 dB. He noted
that appellant complained of tinnitus. Dr. Blumenfeld diagnosed a bilateral high-frequency
hearing loss.
OWCP referred Dr. Blumenfeld’s report and the medical record to an OWCP medical
adviser for an impairment rating. In a February 8, 2010 report, the medical adviser found that
appellant had a zero percent hearing loss under the A.M.A., Guides, plus five percent for tinnitus,
“yielding five percent sensorineural hearing loss.”
In a February 11, 2010 letter, OWCP advised appellant that he was entitled to a schedule
award for hearing loss. On February 17, 2010 appellant claimed a schedule award. On March 26,
2010 OWCP issued him a schedule award for five percent binaural hearing loss due to tinnitus.
The period of the award ran from January 6 to March 14, 2010. The total amount of the award was
$6,616.87.
In an April 16, 2013 memorandum, OWCP found that the March 26, 2010 schedule award
for tinnitus was issued in error as appellant had no ratable hearing loss. It noted that there was no
basis for paying a schedule award for tinnitus unless the condition caused or contributed to a
ratable hearing loss.2 OWCP therefore found that the entire $6,616.87 schedule award constituted
an overpayment of compensation.
By notice dated April 16, 2013 and reissued June 10, 2013,3 OWCP advised appellant of
its preliminary determination that he was overpaid $6,616.87 in compensation because the
March 26, 2010 schedule award was issued in error. It made the preliminary finding that he was
not at fault in creating the overpayment. OWCP provided appellant an overpayment recovery
questionnaire (Form OWCP-20) and afforded him 30 days to provide financial information about
his income, assets and expenses.

2

OWCP cited to Charles H. Potter, 39 ECAB 645 (1988) and Royce L. Chute, 36 ECAB 202 (1984).

3

The April 16, 2013 notice was returned to OWCP as undeliverable.

2

In response, appellant submitted a July 2, 2013 letter requesting that OWCP decide his
case based on the written record. He disagreed with the fact and amount of the overpayment.
Appellant also requested waiver as he was not at fault in creation of the overpayment. He
asserted that he continued to have a work-related hearing loss. Appellant submitted the
overpayment recovery questionnaire, listing $3,865.00 in monthly income, $2,430.00 in monthly
expenses and $26,000.00 in savings and checking accounts.
By decision dated July 24, 2013 and reissued August 15, 2013,4 OWCP finalized the fact
and amount of the overpayment and the finding that appellant was not at fault in its creation. It
denied waiver of recovery as his financial information did not establish that recovery of the
overpayment would defeat the purpose of FECA or be against equity and good conscience.
OWCP found that appellant had sufficient income and assets to repay the $6,616.87
overpayment without financial hardship. It directed recovery by submitting a check for the full
amount of the overpayment.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA provide for compensation to employees sustaining
permanent impairment from loss or loss of use of specified members of the body. It, however,
does not specify the manner in which the percentage loss of a member shall be determined. The
method used in making such determination is a mater which rests in the sound 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. The A.M.A.,
Guides has been adopted by OWCP as a standard for evaluation of schedule losses and the Board
has concurred in such adoption.5 For schedule awards after May 1, 2009, the impairment is
evaluated under the sixth edition of the A.M.A., Guides, published in 2008.6 If a claimant
received a schedule award and the medical evidence does not support the degree of permanent
impairment awarded, an overpayment of compensation may be created.7
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.8 Using the frequencies of 500, 1,000, 2,000 and 3,000 cps the losses at each
frequency are added up and averaged. The remaining amount is multiplied by a factor of 1.5 to
arrive at the percentage of monaural hearing loss. The binaural loss is determined by calculating
the loss in each ear using the formula for monaural loss; the lesser loss is multiplied by five, then
added to the greater loss and the total is divided by six to arrive at the amount of the binaural
4

The July 24, 2013 decision was returned to OWCP as undeliverable due to a recent change of address.

5

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also id., Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
7

W.M., Docket No. 13-291 (issued June 12, 2013). See Richard Saldibar, 51 ECAB 585 (2000).

8

A.M.A., Guides, (6th ed. 2008) p. 250. See supra note 6 at Chapter 3.700, Exhibit 1 (January 2010); see supra
note 6 at Chapter 2.808.6a (January 2010).

3

hearing loss.9 The Board has concurred in OWCP’s adoption of this standard for evaluating
hearing loss.10
Regarding tinnitus, the A.M.A., Guides provide that tinnitus is not a disease but rather a
symptom that may be the result of disease or injury.11 The A.M.A., Guides state that, if tinnitus
interferes with activities of daily living, including sleep, reading (and other tasks requiring
concentration), enjoyment of quiet recreation and emotional well-being, up to five percent may
be added to a measurable binaural hearing impairment.12 Aschedule award for tinnitus is not
payable unless the medical evidence establishes that the condition caused or contributed to a
ratable hearing loss.13
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a bilateral sensorineural hearing loss due to
hazardous noise exposure at work. Appellant claimed a schedule award on February 17, 2010.
OWCP obtained a second opinion from Dr. Blumenfeld, a Board-certified otolaryngologist, who
found a nonratable bilateral sensorineural hearing loss and noted appellant’s complaint of
tinnitus. The medical adviser concurred with Dr. Blumenfeld’s finding that appellant did not
have a ratable hearing loss, but erroneously added five percent impairment for tinnitus. On
March 26, 2010 OWCP issued a schedule award for five percent binaural hearing loss,
equivalent to $6,616.87 in compensation. It later found that the March 26, 2010 schedule award
was issued in error, as a claimant is only entitled to a schedule award for tinnitus if there is also a
ratable hearing loss. As appellant did not have a ratable hearing loss, he was not entitled to a
schedule award for tinnitus.
OWCP correctly determined that appellant was not entitled to a schedule award for
tinnitus as he had no ratable hearing loss.14 The entire amount of the March 26, 2010 schedule
award constituted an overpayment of compensation. Therefore, OWCP’s August 15, 2013
decision finding a $6,616.87 overpayment of compensation was proper under the law and facts
of this case.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA15 provides that, where an overpayment of compensation has
been made because of an error of fact or law, adjustments shall be made by decreasing later
9

Id.

10

C.C., Docket No. 11-731 (issued October 11, 2011).

11

See A.M.A., Guides 249.

12

Id. K.B., Docket No. 13-443 (issued May 10, 2013); Robert E. Cullison, 55 ECAB 570 (2004).

13

See Juan A. Trevino, 54 ECAB 358 (2003); Charles H. Potter, supra note 2.

14

Charles H. Potter, supra note 2.

15

5 U.S.C. § 8129(a).

4

payments to which an individual is entitled.16 The only exception to this requirement is found in
section 8129(b) of FECA, which provides that adjustments or recovery may not be made when
incorrect payments have been made to an individual who is without fault and when such
adjustment or recovery would defeat the purpose of FECA or would be against equity and good
conscience.17
Thus, a finding that appellant was without fault is not sufficient, in and of itself, for
OWCP to waive the overpayment.18 OWCP must exercise its discretion to determine whether
recovery of the overpayment would “defeat the purpose of FECA or would be against equity and
good conscience,” pursuant to the guidelines provided in sections 10.434-37 of the implementing
federal regulations.19 Recovery of an overpayment will defeat the purpose of FECA is such
recovery would cause hardship to a currently or formerly entitled beneficiary because: (a) the
beneficiary from whom OWCP seeks recovery needs substantially all of his or her current
income (including compensation benefits) to meet current ordinary and necessary living
expenses; and (b) the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data furnished by the Bureau of Labor Statistics.20 A higher amount is specified for
a beneficiary with one or more dependents.21 Recovery of an overpayment is considered to be
against equity and good conscience when any individual who received an overpayment would
experience severe financial hardship in attempting to repay the debt.22 Recovery of an
overpayment is also considered to be against equity and good conscience when any individual, in
reliance on such payments or on notice that such payments would be made, gives up a valuable
right or changes his or her position for the worse.23
Section 10.438 of the FECA’s implementing regulations provide that the individual who
received the overpayment is responsible for providing information about income, expenses and
assets as specified by OWCP. This information is needed to determine whether or not recovery
of an overpayment would defeat the purpose of FECA or be against equity and good conscience.
Failure to submit the requested information within 30 days of the request shall result in the denial
of waiver and no further request for waiver shall be considered until the requested information is
furnished.24

16

Id. at § 8129(a).

17

Id. at § 8129(b).

18

James Lloyd Otte, 48 ECAB 334, 338 (1997); see William J. Murphy, 40 ECAB 569, 571 (1989).

19

20 C.F.R. §§ 10.434-37.

20

See Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6a(1)(b) (June 2009).
21

20 C.F.R. § 10.436.

22

Id. at § 10.437(a).

23

Id. at § 10.437(b).

24

Id. at § 10.438; Linda Hilton, 52 ECAB 476 (2001).

5

As the only limitation on OWCP’s authority is reasonableness, abuse of discretion is
generally shown through proof of manifest error, clearly unreasonable exercise of judgment or
actions taken which are contrary to both logic and probable deductions from known facts.25
ANALYSIS -- ISSUE 2
In this case, appellant was found to be without fault in creation of the overpayment.
Accompanying the June 10, 2013 preliminary notice of overpayment, OWCP provided him an
overpayment recovery questionnaire to obtain information about his income, assets and
expenses. Appellant provided information regarding his income, assets and expenses. Although
he did not submit supporting documentation, OWCP accepted his responses.
In the August 15, 2013 decision, OWCP found that, although appellant was without fault
in creation of the overpayment, waiver could not be granted as he had sufficient assets and
income to repay the overpaid compensation without incurring financial hardship. It found that
he did not need substantially all of his income to cover ordinary and necessary living expenses.
Appellant’s discretionary income exceeded his expenses by $1,430.00 a month, well above the
$50.00 amount used to determine this element. Also, he had $26,000.00 in bank accounts, above
the $4,800.00 asset base for an individual.26 Therefore, recovery of the overpayment would not
defeat the purpose of FECA. OWCP further found that recovery would not be against equity and
good conscience as appellant had not changed his position for the worse as a result of the
overpaid funds. It directed recovery of the overpayment by lump-sum check for the entire
$6,616.87 overpayment.27
Because appellant has failed to establish that recovery of the overpayment would defeat
the purpose of FECA or be against equity and good conscience, he has failed to show that
OWCP abused its discretion by refusing to waive the overpayment.28
On appeal, appellant contends that OWCP should have waived recovery of the
overpayment as he was not at fault in its creation. However, the overpayment was not subject to
waiver as appellant had sufficient income and assets to repay it without defeating the purpose of
FECA or being against equity and good conscience.
CONCLUSION
The Board finds that OWCP properly found an overpayment of $6,616.87 was created.
The Board further finds that OWCP properly denied waiver of recovery.

25

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

26

See supra note 20.

27

The Board does not have jurisdiction over the recovery of the overpayment as OWCP did not direct recovery
from continuing compensation payments. See Desiderio Martinez, 55 ECAB 245 (2004) (the Board’s jurisdiction is
limited to reviewing those cases where OWCP seeks recovery from continuing compensation benefits under FECA).
28

M.C., Docket No. 13-1147 (issued July 18, 2013).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 15, 2013 is affirmed.
Issued: May 20, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


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

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

Docket No. 13-922
Issued: August 6, 2013

Case Submitted on the Record

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

JURISDICTION
On March 11, 2013 appellant, through her attorney, filed a timely appeal from a
December 18, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has established that a May 24, 2007 wage-earning
capacity determination should be modified; and (2) whether appellant has established entitlement
to wage-loss compensation for total disability commencing July 2, 2011.
FACTUAL HISTORY
On November 14, 2000 appellant, then a 45-year-old full-time carrier, filed a traumatic
injury claim (Form CA-1) alleging that on November 10, 2000 she sustained injury when she
1

5 U.S.C. § 8101 et seq.

lifted a tub of flats while in the performance of duty. OWCP accepted the claim for lumbar
sprain, displacement of a lumbar intervertebral disc and lumbar intervertebral disc disorder with
myelopathy.
The record indicates that on May 25, 2004 appellant accepted a light-duty job at three
hours a day. On March 7, 2007 she accepted a light-duty position as a modified express mail
courier. The position was four hours a day, five days per week.
By decision dated May 24, 2007, OWCP reduced appellant’s compensation finding that
her actual earnings in the job since March 7, 2007 fairly and reasonably represented her wageearning capacity.2 It found that appellant had a 35 percent loss of wage-earning capacity based
on actual earnings of $592.56 per week.
Appellant continued to receive compensation based on her loss of wage-earning capacity.
By letter dated July 2, 2011, the employing establishment notified appellant that, pursuant to the
National Reassessment Process (NRP), a light-duty job within her work restrictions was no
longer available. On August 5, 2011 appellant submitted a claim for compensation (Form CA-7)
commencing July 2, 2011. She also submitted a recurrence of disability claim (CA-2a) on
August 15, 2011 for the period commencing July 2, 2011. The record also contains a job offer
dated August 15, 2011 for a modified rural carrier position, with work hours from 8:30 a.m. to
12:00 p.m., five days per week.
In a report dated July 18, 2011, Dr. Craig Johnson, a Board-certified neurosurgeon,
provided results on examination. He diagnosed stable symptomatic and neurological status
regarding lower back issues, fibromyalgia and left leg reflex sympathetic dystrophy (RSD).
By decision dated January 23, 2012, OWCP denied the claim for a recurrence of
disability. It found that the medical evidence was insufficient to establish the claim. Appellant
requested a hearing before an OWCP hearing representative, which was held on April 12, 2012.
The medical evidence included a March 15, 2012 report from Dr. Johnson, who noted
appellant’s medical and work history. Dr. Johnson stated that appellant continued to manage her
pain through medication and activity modification, and it was extremely unlikely that she would
be able to be meaningfully, gainfully employed.
In a decision dated June 28, 2012, the hearing representative affirmed the January 23,
2012 decision. The hearing representative found insufficient evidence to modify the wageearning capacity decision, as there was no evidence of error in the decision or evidence of a
material worsening of appellant’s condition as of July 2, 2011.
Appellant requested reconsideration of her claim by letter dated September 19, 2012.
She argued that OWCP had failed to follow its procedures with respect to withdrawal of light
duty pursuant to NRP.

2

OWCP referred to the job title as modified rural carrier, but the job offer in the record stated the position was
express mail courier.

2

By decision dated December 18, 2012, OWCP reviewed the merits of the claim and
denied modification. It found that the evidence did not establish a modification of the wageearning capacity or a recurrence of disability.
LEGAL PRECEDENT -- ISSUE 1
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was, in fact, erroneous.3
When a light-duty position is withdrawn pursuant to NRP and a claim for total disability
is filed, FECA Bulletin No. 09-05 provides guidance with respect to development of the claim.4
If an LWEC decision has been issued, OWCP must determine whether the LWEC decision
should be modified.5
With respect to an LWEC determination based on actual earnings, it is well established
that OWCP should consider whether the kind of appointment and tour of duty are at least
equivalent to the job held on the date of injury.6 A part-time job is not equivalent to a full-time
position.7
ANALYSIS -- ISSUE 1
In the present case, the employing establishment notified appellant that, pursuant to NRP,
no light-duty position within her work restrictions was available as of July 2, 2011. As noted
above, when there is an LWEC in place, as in the present case, OWCP must make a
determination as to whether the LWEC decision should be modified. One of the grounds for
modification is whether the original determination was erroneous.
The evidence of record establishes that appellant was a full-time worker at the time of her
November 14, 2000 injury. The March 7, 2007 job offered to appellant, on which the LWEC
was based, was a part-time position at 4 hours per day, 20 hours per week. This was not a job
that was equivalent to the kind of appointment and tour of duty as the date-of-injury position.
The Board therefore finds that the evidence establishes the May 24, 2007 LWEC determination

3

Sue A. Sedgwick, 45 ECAB 211 (1993).

4

FECA Bulletin No. 09-05 (issued August 18, 2009).

5

Id.

6

See L.L., Docket No. 12-1912 (issued April 22, 2013).

7

Id.; see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning
Capacity, Chapter 2.814.7. Revisions were made to this section of the procedure manual in June 2013 that were not
in effect at the time of the decision on appeal.

3

was erroneous.8 Appellant has established that a modification of the May 24, 2007 LWEC is
warranted in this case.
LEGAL PRECEDENT -- ISSUE 2
FECA Bulletin No. 09-05 states that if there has been no LWEC rating (or the LWEC has
been set aside), payment for total wage loss should be made as long as certain criteria are met:
the current medical evidence (within the last six months) establishes that the employment-related
residuals continue, the evidence supports that light duty is no longer available, and there is no
indication that a retroactive LWEC should be made (noting that retroactive LWEC
determinations should not be made without approval from the district Director).9 If the medical
evidence is not sufficient, OWCP should request evidence from both the employing
establishment and appellant.10
ANALYSIS -- ISSUE 2
In the present case, the Board has found that the May 24, 2007 LWEC determination was
erroneous. FECA Bulletin No. 09-05 provides specific guidance for the situation presented here:
a withdrawal of a light-duty position pursuant to NRP, and an LWEC that has been set aside.
Decisions below did not address the provisions of FECA Bulletin No. 09-05 or attempt to follow
the guidance provided.11 The decisions considered the evidence as a standard recurrence of
disability claim rather than a withdrawal of light duty pursuant to NRP. The case will be
remanded to OWCP to follow the guidelines provided in FECA Bulletin No. 09-05 and make a
proper determination as to entitlement to wage-loss compensation commencing July 2, 2011.
After such further development as OWCP deems necessary, it should issue an appropriate
decision.
CONCLUSION
The Board finds that the May 24, 2007 LWEC determination should be modified. The
Board further finds that the case should be remanded to OWCP for further development of the
evidence with respect to the claim for compensation commencing July 2, 2011.

8

See L.L., supra note 6.

9

FECA Bulletin No. 09-05 (issued August 18, 2009).

10

Id.

11

See C.R., Docket No. 12-1757 (issued April 2, 2013) (noting that a withdrawal of light duty is considered a
recurrence of disability under OWCP regulations, and FECA Bulletin No. 09-05 provides specific guidance
regarding review of the medical evidence).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 18, 2012 is reversed with respect to modification of the
LWEC determination, set aside with respect to the claim for compensation commencing July 2,
2011 and remanded for further action consistent with this decision of the Board.
Issued: August 6, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.E., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
OFFICE OF HEARINGS & APPEALS,
Tulsa, OK, Employer
__________________________________________

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

Docket No. 16-0321
Issued: May 29, 2018

Case Submitted on the Record

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

JURISDICTION
On December 8, 2015 appellant filed a timely appeal from a November 20, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this claim.2
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $692.90 for the period July 1, 2014 through September 19, 2015; (2) whether OWCP
properly denied waiver of recovery of the overpayment; and (3) whether OWCP properly required
1
2

5 U.S.C. § 8101 et seq.

The record provided the Board includes evidence received after OWCP issued its November 20, 2015 decision.
The Board’s jurisdiction is limited to the evidence that was in the case record at the time of OWCP’s final decision.
Therefore, the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1).

recovery of the overpayment by deducting $100.00 every 28 days from appellant’s continuing
compensation payments.
FACTUAL HISTORY
This case has previously been before the Board.3 On March 13, 2000 appellant, then a 51year-old attorney-adviser, filed an occupational disease claim (Form CA-2) for an emotional
condition that he attributed to factors of his federal employment. He stopped work in
January 2000, and the Office of Personnel Management (OPM) awarded him a disability annuity
beginning April 4, 2000.4 After several denials, OWCP ultimately accepted appellant’s claim for
severe recurrent major depressive disorder with psychotic features, which arose on or about
November 4, 1999.5 It paid wage-loss compensation for temporary total disability retroactive to
February 13, 2000, and placed appellant on the periodic compensation rolls, effective
September 4, 2005. As of the date of the appeal, appellant continued to receive FECA wage-loss
compensation.
On August 1, 2014 at age 66, appellant was eligible to receive full retirement (age-related)
benefits from the Social Security Administration (SSA).
In a July 13, 2015 employment/financial disclosure report (EN1032), appellant informed
OWCP that he was not currently receiving retirement benefits from SSA as part of an annuity for
federal (FERS-based) service.6
On July 21, 2015 OWCP requested information from SSA regarding whether a FERS
offset was required. It provided a FERS/SSA dual benefits calculation form for SSA to complete
and return to OWCP. On August 24, 2015 SSA returned the completed form noting that, effective
July 2014, appellant’s monthly SSA rate with his FERS contribution was $2,163.90. The
corresponding monthly rate without FERS was $2,117.30. Beginning December 2014, the SSA
rate with and without FERS contributions were $2,200.60 and $2,153.20, respectively.
Based on the information SSA provided, OWCP calculated a 28-day FERS offset of $43.02
for the period July 1 through November 30, 2014 (153 days), with a corresponding overpayment
of $235.05. For the period December 1, 2014 through September 19, 2015 (293 days), OWCP
calculated a 28-day FERS offset of $43.75, and a resulting overpayment of $457.85. The total
overpayment for the period July 1, 2014 through September 19, 2015 was $692.90.

3

Docket No. 01-1901 (issued February 13, 2003); Docket No. 03-2275 (issued January 22, 2004).

4

OPM advised that appellant was covered under the Federal Employees Retirement System (FERS).

5

Appellant has preexisting, service-connected post-traumatic stress disorder (PTSD), for which he receives
disability benefits from the Department of Veterans Affairs.
6
The EN1032 advised appellant that he need not report any benefits received from SSA on account of employment
in the private sector.

2

Effective September 20, 2015, OWCP reduced appellant’s 28-day periodic rolls payment
based upon the calculated FERS offset.
On October 19, 2015 OWCP issued a preliminary overpayment determination that an
overpayment was created in the amount of $692.90, for the period July 1, 2014 through
September 19, 2015. It explained in detail the method by which it calculated the amount of
overpayment. OWCP explained that appellant’s compensation was not adjusted to reflect the
SSA/FERS deduction from July 1, 2014 through September 19, 2015 which occurred because he
had received retirement benefits concurrently with FECA benefits. This constituted a prohibited
dual benefit. OWCP advised that appellant was without fault in the creation of the overpayment.
It also provided him an Overpayment Recovery Questionnaire (Form OWCP-20) and informed
appellant of his appeal rights.
On October 26, 2015 appellant replied, noting that he was confused by OWCP’s recent
letter, but assumed that, because he was not at fault, he was not obligated to repay the debt. He
asked OWCP to let him know if his interpretation/assumption was incorrect, otherwise he would
protest having to repay a debt he was not at fault in creating.
By decision dated November 20, 2015, OWCP finalized the preliminary determination
regarding the fact and amount of overpayment, as well as its finding that appellant was without
fault in the creation of the overpayment. Additionally, it indicated that the October 19, 2015
preliminary determination outlined appellant’s rights and responsibilities with respect to the
identified overpayment. While he responded by letter dated October 26, 2015, appellant did not
pursue any of the rights and/or remedies available to him. OWCP, therefore, found that he had
not provided justification for waiver of recovery of the overpayment. It further advised that the
overpayment would be recovered by withholding $100.00 from appellant’s 28-day periodic
compensation payments.
LEGAL PRECEDENT -- ISSUE 1
A FECA beneficiary may not receive wage-loss compensation concurrently with a federal
retirement or survivor annuity.7 To avoid payment of a dual benefit, FECA wage-loss
compensation benefits shall be reduced by the amount of Social Security Act benefits attributable
to the employee’s federal (FERS-based) service.8 However, an offset is not required where the
employee-beneficiary is covered under the Civil Service Retirement System (CSRS) and/or his or
her SSA age-related benefits are attributable to private sector employment.9
An individual who is without fault in creating or accepting an overpayment is nonetheless
subject to recovery of the overpayment unless adjustment or recovery would defeat the purpose of

7

See 5 U.S.C. § 8116(a), (d); 20 C.F.R. § 10.421(a).

8

5 U.S.C. § 8116(d)(2); 20 C.F.R. § 10.421(d).

9

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Periodic Review of Disability Claims, Chapter 2.812.9c
(May 2012); Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4e(2)
(January 1997).

3

FECA or would be against equity and good conscience.10 Recovery of an overpayment will defeat
the purpose of FECA if such recovery would cause hardship to a current or former beneficiary
because the beneficiary from whom OWCP seeks recovery needs substantially all of his current
income, including compensation benefits, to meet current ordinary and necessary living expenses,
and the beneficiary’s assets do not exceed a specified amount as determined by OWCP.11
Additionally, 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 in
attempting to repay the debt or when an individual, in reliance on such payment or on notice that
such payments would be made, relinquished a valuable right or changed his position for the
worse.12
The individual who received the overpayment is responsible for providing information
about income, expenses, and assets as specified by OWCP.13 This information is necessary for
determining whether waiver of recovery of the overpayment is warranted.14 The information is
also used to determine an appropriate repayment schedule, if necessary.15 Failure to submit the
requested information within 30 days of the request shall result in denial of waiver.16
When an overpayment has been made to an individual who is entitled to further payments,
OWCP shall decrease later payments of compensation, taking into account the probable extent of
future payments, the rate of compensation, the financial circumstances of the individual, and any
other relevant factors, so as to minimize any hardship.17
ANALYSIS -- ISSUE 1
The record supports that appellant received FECA wage-loss compensation benefits
beginning February 13, 2000 and that he also received SSA retirement benefits beginning July 1,
2014, when he reached the age of 66. The portion of the SSA benefits appellant earned as a federal
employee was part of his FERS retirement package and the receipt of benefits concurrently under
FECA and federal retirement benefits is a prohibited dual benefit.

10

5 U.S.C. § 8129(b); 20 C.F.R. §§ 10.433, 10.434, 10.436, 10.437.

11
20 C.F.R. § 10.436(a), (b). For an individual with no eligible dependents the asset base is $4,800.00. The base
increases to $8,000.00 for an individual with a spouse or one dependent, plus $960.00 for each additional dependent.
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6a(1)(b)
(June 2009).
12

20 C.F.R. § 10.437(a), (b).

13

Id. at § 10.438(a).

14

Id.

15

Id.

16

Id. at § 10.438(b).

17

Id. at § 10.441(a).

4

SSA notified OWCP of the applicable SSA compensation rates for appellant and dates of
monthly SSA compensation beginning on July 1, 2014 and on December 1, 2014. This included
rates with and without FERS offset.18
Appellant’s FECA compensation was not offset by his SSA retirement benefits until
September 20, 2015. Based on the rates provided by SSA, OWCP issued a preliminary notice of
overpayment on October 19, 2015 and a final overpayment decision on November 20, 2015. It
determined that appellant had received a prohibited dual benefit from July 1, 2014 to
September 19, 2015. This yielded an overpayment of compensation in the amount of $692.90.19
With the preliminary notice of overpayment, OWCP submitted supporting documentation which
includes an overpayment worksheet explaining the overpayment calculation.
The Board has reviewed OWCP’s calculations of the prohibited dual benefit appellant
received for the period July1, 2014 to September 19, 2015 and finds that he had received a
prohibited dual benefit totaling $692.90 for this period, thus creating an overpayment of
compensation in that amount.20
LEGAL PRECEDENT -- ISSUE 2
According to section 10.436,21 recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary needs substantially all of his or
her current income (including compensation benefits) to meet current, ordinary and necessary
living expenses and also, if the beneficiary’s assets do not exceed a specified amount as determined
by OWCP from data provided by the Bureau of Labor Statistics.22 For waiver under this standard,
a claimant must meet the two-pronged test and show that he or she both needs substantially all of
his or her current income to meet current, ordinary, and necessary living expenses,23 and that his
or her assets do not exceed the resource base.24

18

FECA Bulletin No. 97-09 (issued February 3, 1997).

19

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

20
See A.S., Docket No. 17-0606 (issued December 21, 2017); I.H., Docket No. 15-1578 (issued November 19,
2015).
21

20 C.F.R. § 10.436.

22

OWCP procedures provide 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. Supra note 9 at Chapter
6.200.6(a) (October 2004).
23

An individual is deemed to need substantially all of his or her income to meet current ordinary and necessary
living expenses if monthly income does not exceed monthly expenses by more than $50.00. Desiderio Martinez, 55
ECAB 245, 250 (2004).
24

See supra note 21. W.F., 57 ECAB 705, 708 (2006).

5

The burden is on the claimant to show that the expenses are reasonable and needed for a
legitimate purpose.25 OWCP’s regulations provide:
“(a) The individual who received the overpayment is responsible for providing
information about income, expenses and assets as specified by [OWCP]. This
information is needed to determine whether or not recovery of an overpayment
would defeat the purpose of [FECA] or be against equity and good conscience. ...
“(b) Failure to submit the requested information within 30 days of the request shall
result in denial of waiver and no further request for waiver shall be considered until
the requested information is furnished.”26
ANALYSIS -- ISSUE 2
As OWCP found appellant without fault in the creation of the overpayment, waiver of
recovery must be considered, and repayment is still required unless adjustment or recovery of
the overpayment would defeat the purpose of FECA or be against equity and good conscience.27
In the October 19, 2015 preliminary notice of overpayment, OWCP advised appellant
of its preliminary determination and instructed him that he was found without fault. Appellant
was instructed to either repay the amount in full or request waiver of recovery by completing a
Form OWCP-20 overpayment recovery questionnaire and submitting supporting financial
documentation. He did not avail himself of his appeal rights or provide any information
responsive to the Form OWCP-20 questionnaire. Therefore, the Board finds that OWCP
properly denied waiver of recovery of the overpayment.
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP’s regulations provides that when an overpayment has been
made to an individual who is entitled to further payments, the individual shall refund to OWCP
the amount of the overpayment as soon as the error is discovered or his or her attention is called
to the same. If no refund is made, OWCP shall decrease later payments of compensation, taking
into account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual and any other relevant factors, so as to minimize hardship.28
ANALYSIS -- ISSUE 3
The record reflects that appellant continues to receive wage-loss compensation under
FECA. When, as in this case, an individual fails to provide requested information on income,
25
26

Id.
20 C.F.R. § 10.438

27

Id.

28

Id. at § 10.441(a).

6

expenses, and assets, OWCP should follow minimum collection guidelines, which provide in
general that government claims should be collected in full and that, if an installment plan is
accepted, the installment shall be large enough to collect the debt promptly.29
The Board finds that OWCP properly considered the relevant factors in setting a
minimal recovery amount of $100.00 from appellant’s continuing compensation payments,
noting that the absorption would occurred by approximately May 29, 2016.
CONCLUSION
The Board finds that OWCP properly found an overpayment of compensation in the
amount of $692.90 for the period July 1, 2014 through September 19, 2015. The Board also finds
that OWCP properly denied waiver of recovery of the overpayment and properly required recovery
of the overpayment by deducting $100.00 every 28 days from appellant’s continuing compensation
payments.
ORDER
IT IS HEREBY ORDERED THAT the November 20, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 29, 2018
Washington, DC

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

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

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

29

Robin D. Calhoun, Docket No. 00-1756 (issued May 21, 2001); Gail M. Roe, 47 ECAB 268 (1995).

7