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

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

Docket No. 21-0025
Issued: September 20, 2021

Case Submitted on the Record

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

JURISDICTION
On October 8, 2020 appellant filed a timely appeal from a September 14, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant received a $19,717.42 overpayment of compensation
for the period September 1, 2017 through December 7, 2019 for which he was without fault,
because he concurrently received FECA wage-loss compensation and Social Security
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the September 14, 2020 OWCP decision, appellant submitted new
evidence. However, the Board’s Rules of Procedure provides: The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal. 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.

Administration (SSA) age-related retirement benefits, without an appropriate offset; (2) whether
OWCP properly denied waiver of recovery of the overpayment; and (3) whether it properly
required recovery of the overpayment by deducting $250.00 every 28 days from appellant’s
continuing compensation payments.
FACTUAL HISTORY
On August 14, 2000 appellant, then a 47-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on August 10, 2000 he sustained neck and arm injuries when he
was involved in a motor vehicle accident while in the performance of duty. OWCP accepted the
claim for cervical and left shoulder strains and left shoulder contusion. It subsequently expanded
acceptance of the claim to include cervicalgia, adjustment disorder with depressed mood, brachial
neuritis or radiculitis, and cervicobrachial syndrome. Appellant stopped work on August 11, 2000
and OWCP initially paid appellant intermittent wage-loss compensation on the supplemental rolls.
It paid appellant wage-loss compensation on the periodic rolls as of October 5, 2003.
On November 15, 2017 OWCP provided SSA with a Federal Employees Retirement
System (FERS)/SSA dual benefits calculation form.
On December 26, 2017 OWCP received from SSA a December 19, 2017 FERS/SSA dual
benefits calculation form, which indicated that appellant had been in receipt of SSA age-related
retirement benefits since September 2017. The form provided SSA benefit rates with and without
a FERS offset.
On October 30, 2019 OWCP again provided SSA with a FERS/SSA dual benefits
calculation form.
On December 4, 2019 OWCP received from SSA a FERS/SSA dual benefits calculation
form, dated November 13, 2019, which indicated that appellant had been in receipt of SSA agerelated retirement benefits since September 2017. The form indicated SSA benefit rates with and
without a FERS offset. Beginning September 1, 2017, appellant’s SSA rate with FERS was
$1,423.00 and without FERS was $723.00. Beginning December 1, 2017, appellant’s SSA rate
with FERS was $1,452.00 without FERS was $737.00. Beginning December 1, 2018, appellant’s
SSA rate with FERS was $1,492.50 without FERS was $757.50.
On December 23, 2019 OWCP prepared a FERS offset calculation worksheet wherein it
noted the calculation of appellant’s overpayment from September 1, 2017 through
December 7, 2019. The total overpayment was determined to be $19,717.42. The worksheet
indicated that an overpayment was created from September 1 through November 30, 2017 in the
amount of $2,100.00, from December 1, 2017 through November 30, 2018 in the amount of
$8,603.57, and from December 1, 2018 through December 7, 2019 in the amount of $9,013.85.
On February 5, 2020 OWCP issued a preliminary determination finding that an
overpayment of compensation in the amount of $19,717.42 had been created. It explained that the
overpayment occurred because appellant’s FECA benefits were not reduced by the FERS portion
of his SSA age-related retirement benefits for the period September 1, 2017 through
December 7, 2019. OWCP found appellant without fault in the creation of the overpayment and

2

forwarded an overpayment action request form and overpayment recovery questionnaire (Form
OWCP-20). It requested that he provide supporting documentation including income tax returns,
bank account statements, bills, cancelled checks, pay slips, and any other records, which supported
income and expenses. OWCP afforded appellant 30 days to respond.
On March 9, 2020 appellant noted his disagreement regarding the overpayment and
requested a prerecoupment hearing on the issues of fault and waiver of recovery of the
overpayment before a representative of OWCP’s Branch of Hearings and Review.
During the hearing held on July 2, 2020, appellant testified regarding his income and
expenses.
On July 28, 2020 OWCP received a partially-completed Form OWCP-20 dated July 14,
2020, and supporting financial documentation. Appellant reported that he had four dependents
including his 36-year-old daughter and three grandsons. He listed his total monthly income as
$1,238.29, which included $1,166.20 in SSA benefits and $72.09 in Department of Veterans’
Affairs benefits. Appellant listed his monthly expenses totaling $2,675.00. He listed assets of
$300.00 in a checking account and $300.00 in a savings account, totaling $600.00. No supporting
financial documentation accompanied the completed Form OWCP-20.
By decision dated September 14, 2020, a hearing representative finalized OWCP’s
preliminary overpayment determination, finding that appellant had received an overpayment of
compensation in the amount of $19,717.42 for the period September 1, 2017 through December 7,
2019 because OWCP failed to offset his compensation payments by the portion of his SSA agerelated retirement benefits that were attributable to his federal service. She further found that he
was without fault in the creation of the overpayment, but denied waiver of recovery of the
overpayment of compensation because he failed to provide any financial documentation to support
the income, expenses, and assets on his partially completed Form OWCP-20. The hearing
representative concluded that there was no evidence to substantiate that recovery of the
overpayment would either defeat the purpose of FECA or be against equity and good conscience.
She indicated that the overpayment would be recovered by withholding $250.00 from appellant’s
continuing compensation payments every 28 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of his
or her federal employment. 3 Section 8116 limits the right of an employee to receive compensation.
While an employee is receiving compensation, he or she may not receive salary, pay, or
remuneration of any type from the United States. 4
Section 10.421(d) of OWCP’s implementing regulations requires that OWCP reduce the
amount of compensation by the amount of any SSA age-related benefits that are attributable to
3

5 U.S.C. § 8102(a).

4

Id. at § 8116.

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federal service of the employee. 5 FECA Bulletin No. 97-09 provides that FECA benefits have to
be adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned
as a federal employee is part of the FERS retirement package, and the receipt of FECA benefits
and federal retirement concurrently is a prohibited dual benefit.6
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $19,717.42 for which he was without fault because he
concurrently received FECA wage-loss compensation benefits and SSA age-related retirement
benefits for the period September 1, 2017 through December 7, 2019.7
In the September 14, 2020 decision, OWCP’s hearing representative found that an
overpayment of compensation was created for the period September 1, 2017 through
December 7, 2019. The overpayment was based on the evidence that, while appellant was
receiving compensation for total disability under FECA, he was also receiving SSA age-related
retirement benefits. A claimant cannot receive both compensation for wage-loss and SSA agerelated retirement benefits attributable to federal service for the same period. 8 The information
provided by SSA established that appellant received SSA age-related retirement benefits that were
attributable to federal service during the period September 1, 2017 through December 7 2019.
Consequently, the fact of overpayment has been established. 9
To determine the amount of the overpayment, the portion of the SSA benefits that were
attributable to appellant’s federal service must be calculated. OWCP received documentation from
SSA with respect to the specific amount of SSA age-related retirement benefits that were
attributable to federal service. SSA provided the SSA rates with FERS, and without FERS for
specific periods commencing September 1, 2016 through December 7, 2019. OWCP provided its
calculations for each relevant period based on the SSA worksheet.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period September 1, 2017 through December 7, 2019 and finds that an overpayment of
compensation in the amount of $19,717.42 was created. 10

5

20 C.F.R. § 10.421(d); see B.G., Docket No. 20-0541 (issued April 28, 2021); L.J., 59 ECAB 264 (2007).

6

FECA Bulletin No. 97-09 (issued February 3, 1997; see also P.N., Docket No. 20-1159 (issued April 20, 2021);
N.B., Docket No. 18-0795 (issued January 4, 2019).
7

B.G., supra note 5; T.B., Docket No. 18-1449 (issued March 19, 2019).

8

See P.N., supra note 6; E.K., Docket No. 18-0587 (issued October 1, 2018).

9

B.G., supra note 5; L.M., Docket No. 19-1197 (issued January 8, 2020).

10

See B.G., supra note 5; D.C., Docket No. 17-0559 (issued June 21, 2018).

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LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience. 11
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter that rests
within OWCP’s discretion pursuant to statutory guidelines. 12
Recovery of an overpayment will defeat the purpose of FECA if such recovery would cause
hardship to a currently or formerly entitled beneficiary because 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 the beneficiary’s assets do
not exceed a specified amount as determined by OWCP. 13 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, gives up a valuable right or changes his or her position for the worse. 14
OWCP’s 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. The information is also used to
determine the repayment schedule, if necessary.15 Failure to submit the requested information
within 30 days of the request shall result in a denial of waiver of recovery, and no further request
for waiver shall be considered until the requested information is furnished. 16
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.

11

5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see B.G., supra note 5; A.F., Docket No. 190054 (issued June 12, 2019).
12

A.C., Docket No. 18-1550 (issued February 21, 2019); see Robert Atchison, 41 ECAB 83, 87 (1989).

13

20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4(a)(2) (September 2018).
14

Id. at § 10.437(a)(b).

15

Id. at § 10.438(a); P.N., supra note 6; Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

16

Id. at 10.438(b).

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As OWCP found that appellant was without fault in the creation of the overpayment,
waiver 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. 17
While appellant submitted a partially-completed Form OWCP-20 dated July 14, 2020, he
failed to furnish financial documentation to support his income and expenses. The Board finds
that, in the absence of complete and current documentation of appellant’s income, expenses and
assets, the evidence is insufficient to establish that recovery of the overpayment would defeat the
purposes of FECA or be against equity and good conscience.
As appellant failed to establish that recovery of the overpayment of compensation would
either defeat the purpose of FECA or be against equity and good conscience, the Board finds that
OWCP properly denied waiver of recovery. 18
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 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 any hardship. 19
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$250.00 every 28 days from appellant’s continuing compensation payments. 20
The record supports that, in requiring recovery of the overpayment by deducting $250.00
from appellant’s compensation payments every 28 days, OWCP took into consideration the factors
set forth in section 10.441 and found that this method of recovery would minimize any resulting
hardship on appellant. Appellant failed to provide sufficient information regarding his income,
expenses, and assets, and OWCP followed minimum collection guidelines by requiring
installments large enough to collect the full debt promptly. Therefore, the Board finds that OWCP
properly required recovery of the overpayment by deducting $250.00 from his continuing
compensation payments every 28 days. 21

17

Id. at § 10.436.

18

Id.

19

Id. at § 10.441, see B.G., supra note 5; C.M., Docket No. 19-1451 (issued March 4, 2020).

20

L.D., Docket No. 19-1423 (issued March 2, 2020).

21

Federal (FECA) Procedure Manual, supra note 13 at Chapter 6.500.8(c)(1) (September 2018).

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CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $19,717.42 for which he was without fault, because he
concurrently received FECA wage-loss compensation and SSA age-related retirement benefits for
the period September 1, 2017 through December 7, 2019, without an appropriate offset. The
Board further finds that OWCP properly denied waiver of recovery of the overpayment and
properly required recovery of the overpayment by deducting $250.00 every 28 days from his
continuing compensation payments.
ORDER
IT IS HEREBY ORDERED THAT the September 14, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 20, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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

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

Docket No. 16-1230
Issued: July 7, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 24, 2016 appellant, through counsel, filed a timely appeal from a February 17,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of this case.
ISSUE
The issue is whether appellant has established more than five percent permanent
impairment of the left upper extremity, for which she previously received a schedule award.
1

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

5 U.S.C. § 8101 et seq.

On appeal counsel contends there is an unresolved conflict in the medical opinion
evidence.
FACTUAL HISTORY
On June 7, 2008 appellant, then a 58-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that on June 7, 2008 she injured her left leg and wrist when she fell on
cracked pavement. OWCP accepted the claim for left closed distal radius fracture, abrasion of
trunk without infection, abrasion of right elbow without infection, and left knee contusion, which
was subsequently expanded to include left upper limb reflex sympathetic dystrophy.
On June 5, 2014 appellant filed a claim for a schedule award (Form CA-7). In support of
her claim, she submitted a March 4, 2014 impairment rating by Dr. David Weiss, a Boardcertified osteopathic physician.
In the March 4, 2014 report, Dr. Weiss provided a history of appellant’s injury, reviewed
prior medical reports and objective tests, and provided findings on physical examination. In an
attached undated QuickDASH (QD) worksheet, rating the disabilities of the left arm, shoulder
and hand, provided score of 36 percent. Dr. Weiss used appellant’s postoperative history,
examination findings, diagnostic studies, and QD scores to process an impairment rating of the
left upper extremity using the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides).3 According to the Wrist Regional
Diagnostic Grid, Table 15-3, he identified the left wrist fracture as class 1 with a default value of
three percent.4 Using the QD score of 36 percent, Functional History (GMFH) equated to a
grade modifier of 1;5 and Physical Examination (GMPE) a grade modifier of 2.6 Dr. Weiss
indicated that Clinical Studies (GMCS) were not applicable.
Applying the net adjustment formula at section 15-3, pages 409 and 411 of the A.M.A.,
Guides,7 Dr. Weiss subtracted 1, the numerical value of the class, from the numerical value of
the grade modifier for each component (functional history and physical examination, as clinical
studies was not applicable) and then added those values, resulting in a net adjustment of 1 ((1-1)
+ (2-1)).8 Using the net adjustment value of 1 moved the grade within the class 1 position to the

3

A.M.A., Guides (2009).

4

Id. at 396.

5

Id. at 406, Table 15-7.

6

Id. at 408, Table 15-8.

7

Id. at 409, 411.

8

Id.

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right from 3 to 4 or a grade D.9 This resulted in four percent left upper extremity impairment for
the left wrist fracture.10
For appellant’s mild sensory deficit of the left median nerve above the mid forearm,
Dr. Weiss indicated that appellant fell within class 1 of the Peripheral Nerve Impairment
Diagnostic Grid at five percent using Table 15-21.11 Using the QD score of 36 percent,
functional history equated to a grade modifier of 112 and a grade modifier of 4 for symptomatic
clinical studies.13 As physical examination was not applicable, the net modifier adjustment
formula was 3 which moved the rating from 1 to the right for 10 percent left median peripheral
nerve impairment.14 Thus, Dr. Weiss concluded that appellant had a total seven percent
permanent impairment of her left upper extremity for sensory deficit under the sixth edition of
the A.M.A., Guides.
For appellant’s moderate motor strength deficit of the left median nerve (grip), Dr. Weiss
indicated that appellant fell within class 2 of the Peripheral Nerve Impairment Diagnostic Grid at
17 percent using Table 15-21.15 He found a grade modifier of 1 for functional history due to
mild problems and a grade modifier of 4 for symptomatic clinical studies. As physical
examination was not applicable, the net modifier adjustment formula was a net adjustment of 1
which moved the rating to the right to class D for 20 percent moderate left median nerve motor
strength impairment.16 Thus, Dr. Weiss concluded that appellant had a total 31 percent
permanent impairment of her left upper extremity under the sixth edition of the A.M.A., Guides.
He found that appellant had reached maximum medical improvement (MMI) on March 4, 2014.
On September 8, 2014 OWCP routed Dr. Weiss’ report, a statement of accepted facts
(SOAF), and the case file to an OWCP district medical adviser, Dr. Morley Slutsky, Boardcertified in occupational medicine. In a September 9, 2014 report, the medical adviser stated that
appellant had reached MMI of the upper left extremity on March 14, 2014. Dr. Slutsky noted
that complex regional pain syndrome (CRPS) was an accepted condition; however, the objective
evidence was insufficient to warrant a schedule award. The medical adviser provided
calculations regarding the wrist fracture using Table 15-3 of the Wrist Regional Diagnostic Grid
sixth edition of the A.M.A., Guides.17 He identified the left wrist fracture as class 1, assigned a

9

Id. at 396, Table 15-3.

10

Supra note 3.

11

A.M.A., Guides 437, Table 15-21

12

Id. at 406, Table 15-7.

13

Id. at 411, Table 15-9.

14

Supra note 11.

15

Id.

16

Supra note 11.

17

Supra note 4.

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grade modifier of 2 for functional history;18 a grade modifier of 1 for physical examination due
to left wrist range of motion19 and a grade modifier of 2 for x-rays under clinical studies.20
Applying the net adjustment formula at section 15-3, pages 409 and 411 of the A.M.A.,
Guides,21 resulted in a net adjustment of 2 ((2-1) + (1-1) + (2-1)).22 Using net adjustment
formula, the value of 2 moved the grade within the class 1 position to the right from 3 to 5, or
grade E.23 This resulted in five percent left upper extremity impairment. Thus, the medical
adviser concluded that appellant had five percent permanent impairment of the left upper
extremity.
By decision dated April 29, 2015, OWCP granted appellant a schedule award for five
percent permanent impairment of the left upper extremity.
In a letter dated May 5, 2015, counsel requested an oral hearing before an OWCP hearing
representative, which was held on September 24, 2015.
In an October 9, 2015 report, Dr. Weiss reviewed the medical adviser’s September 9,
2015 report and noted his disagreement with the medical adviser regarding an impairment rating
for CRPS. He related that CRPS was an accepted condition. Dr. Weiss explained that there
were two types of CRPS. In CRPS Type 1, neither the initiating causative factor nor the
symptoms involve a specific peripheral nerve structure; therefore, the impairment is rated under
Table 15-26 CRPS Type I. In CRPS Type II, a specific sensory of mixed nerve structure is
involved; therefore, the rating is based on Table 15-21, peripheral nerve impingement upper
extremity impairments.24 Dr. Weiss concluded that appellant had been diagnosed with CRPS
Type II and that Table 15-21, page 437 was appropriate to be used in calculating her impairment
rating. He reiterated that appellant was entitled to 31 percent left upper extremity permanent
impairment rating based on his prior impairment rating.
By decision dated December 9, 2015, an OWCP hearing representative set aside the
April 29, 2015 decision and remanded the case for the medical adviser to review Dr. Weiss’
October 9, 2015 report.
On January 12, 2016 OWCP routed the October 9, 2015 report, a SOAF, and the case file
to a different medical adviser, Dr. Taisha S. Williams, a physiatrist. In a January 23, 2016
report, Dr. Williams reviewed Dr. Weiss’ October 9, 2015 report and noted her disagreement
with the diagnosis of CRPS. She related that appellant’s condition did not meet the criteria for
18

Id. at 406, Table 15-7.

19

Id. at 409, Table 15-8.

20

Id. at 419, Table 15-9.

21

Id. at 409, 411

22

Id.

23

Id. at 396, Table 15-3.

24

Id. at 451.

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CRPS under Table 15-24, page 453. Dr. Williams reported that the impairment rating remained
unchanged from Dr. Slutsky’s prior finding of five percent left upper extremity permanent
impairment. She found the date of MMI to be March 4, 2014.
By decision dated February 17, 2016, OWCP denied appellant’s claim for an additional
impairment.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.25 Section
8107 of FECA sets forth the number of weeks of compensation to be paid for the permanent loss
of use of specified members, functions, and organs of the body.26 FECA, however, does not
specify the manner by which the percentage loss of a member, function, or organ shall be
determined. To ensure consistent results and equal justice under the law, good administrative
practice requires the use of uniform standards applicable to all claimants. Through its
implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.27
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).28 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.29

25

See 20 C.F.R. §§ 1.1-1.4.

26

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C.
§ 8107(c)(1).
27

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

28

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (February 2013).
29

Isidoro Rivera, 12 ECAB 348 (1961).

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The A.M.A., Guides notes that when impairment results strictly from a peripheral nerve
lesion, no other rating method is applied to this section (15.4 Peripheral Nerve Impairment) to
avoid duplication or unwarranted increase in the impairment estimation.30
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.31 When there are opposing reports of virtually
equal weight and rationale, the case must be referred to an impartial medical specialist, pursuant
to section 8123(a) of FECA, to resolve the conflict in the medical evidence.32
ANALYSIS
OWCP accepted the claim for left closed distal radial fracture, abrasion of trunk without
infection, abrasion of right elbow without infection, left knee contusion, and left upper limb
reflex sympathetic dystrophy. By decision dated April 29, 2015, it granted appellant a schedule
award for five percent permanent left upper extremity impairment based upon the medical
adviser’s opinion for fracture of the left wrist. OWCP denied her request for an additional
schedule award in a February 17, 2016 decision. The issue on appeal is whether appellant has
established more than five percent permanent impairment of the left upper extremity, for which
she previously received a schedule award.
The Board finds that this case is not in posture for decision due to a conflict in medical
opinion between Dr. Weiss and the medical advisers as to whether appellant had ratable CRPS,
thereby warranting an increased schedule award.
In a September 9, 2014 report, Dr. Slutsky, the medical adviser, advised that based on the
A.M.A., Guides appellant had five percent impairment of the left upper extremity. Using
Table 15-3 of the Wrist Regional Diagnostic Grid sixth edition of the A.M.A., Guides, left wrist
fracture, appellant had a class 1, grade E, five percent permanent impairment. Dr. Williams, a
second medical adviser, concurred with Dr. Slutsky’s assessment.
The medical advisers also noted that, while CRPS was an accepted condition, they
disagreed with Dr. Weiss’ finding that appellant’s condition was ratable. The medical advisers
related that pursuant to Table 15-24 on page 453 appellant’s CRPS was not ratable.
By contrast, in reports dated March 4, 2014 and October 9, 2015, Dr. Weiss opined that
appellant had a total 31 percent impairment of the left upper extremity. Specifically regarding
CRPS, he calculated appellant’s permanent impairment for mild sensory deficit of the median
30

A.M.A., Guides at 423. The Board notes that the A.M.A., Guides provide that peripheral nerve impairment
may be combined with DBIs at the upper extremity as long as the DBI does not encompass the nerve impairment.
Id. at 419.
31

5 U.S.C. § 8123(a). See S.R., Docket No. 09-2332 (issued August 16, 2010); Y.A., 59 ECAB 701 (2008);
Darlene R. Kennedy, 57 ECAB 414 (2006).
32

A.R., Docket No. 09-1566 (issued June 2, 2010); M.S., 58 ECAB 328 (2007); Bryan O. Crane, 56 ECAB
713 (2005).

6

nerve using Table 15-21, Peripheral Nerve Impairment Diagnostic Grid. Dr. Weiss explained
that, pursuant to the A.M.A., Guides, there were two types of CRPS. As appellant had CRPS
Type II, his rating was based on Table 15-21 for peripheral nerve impairments. Dr. Weiss rated
appellant’s permanent impairment for mild sensory deficit and moderate strength deficit of the
median nerve using Table 15-21.33
The Board finds there is an unresolved conflict in the medical opinion evidence
concerning the extent of permanent impairment arising from appellant’s CRPS. Dr. Weiss
determined that appellant was entitled to an impairment rating for CRPS under Table 15-21 of
the A.M.A., Guides while the medical advisers determined appellant did not have a ratable
CRPS, under Table 15-24, and therefore appellant was not entitled to an impairment rating for
this condition. Therefore, in order to resolve the conflict in the medical opinions, the case will
be remanded to OWCP for referral of the case record, including a SOAF and appellant, to an
impartial medical specialist for a determination, in accordance with the relevant standards of the
A.M.A., Guides, as to whether appellant and is entitled to an impairment rating for the CRPS.
The Board further finds that the case is not in posture for decision with regard to the
extent and degree of left upper extremity impairment regarding appellant’s left wrist fracture.
Dr. Weiss utilized the diagnosis-based impairment (DBI) methodology to conclude that
appellant’s left wrist fracture contributed to his overall 31 percent permanent impairment of the
left upper extremity by four percent. In also utilizing the DBI methodology, the medical advisers
concluded that the left wrist fracture was the only ratable impairment resulting in a total five
percent permanent impairment of the left upper extremity.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation had been followed regarding the proper use of the DBI or the range of
motion (ROM) methodology when assessing the extent of permanent impairment for schedule
award purposes.34 The purpose of the use of uniform standards is to ensure consistent results and
to ensure equal justice under the law to all claimants.35 In T.H., the Board concluded that
OWCP’s physicians were at odds over the proper methodology for rating upper extremity
impairment, having observed attending physicians, evaluating physicians, second opinion
physicians, impartial medical examiners, and district medical advisers use both DBI and ROM
methodologies interchangeably without any consistent basis. Furthermore, the Board observed
that physicians interchangeably cited to language in the first printing or the second printing when
justifying use of either ROM or DBI methodology. Because OWCP’s own physicians were
inconsistent in the application of the A.M.A., Guides, the Board found that OWCP could no
longer ensure consistent results and equal justice under the law for all claimants.36

33

Id. at 438.

34

T.H., Docket No. 14-0943 (issued November 25, 2016).

35

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

36

Supra note 34.

7

In order to ensure a consistent result and equal justice under the law for cases involving
upper extremity impairment, the Board will set aside the February 17, 2016 decision. Utilizing a
consistent method for calculating permanent impairment for upper extremities to be applied
uniformly, and such other development as may be deemed necessary, OWCP shall issue a
de novo decision on appellant’s claim for a left upper extremity schedule award.
CONCLUSION
The Board finds this case not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the February 17, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and this case is remanded for further proceedings
consistent with this opinion, to be followed by a de novo decision.
Issued: July 7, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
U.S. POSTAL SERVICE, LOGISTICS &
DISTRIBUTION CENTER, Tampa, FL,
Employer
__________________________________________

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Appearances:
Michael D. Bridges, for the appellant
Office of Solicitor, for the Director

Docket No. 11-678
Issued: October 17, 2011

Case Submitted on the Record

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

JURISDICTION
On January 12, 2011 appellant filed a timely appeal from a July 23, 2010 decision of the
Office of Workers’ Compensation Programs (OWCP) denying his request for reconsideration
without further merit review. Pursuant to the Federal Employees’ Compensation Act (FECA)1
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this decision. Because
more than 180 days elapsed from April 30, 2010, the date of the most recent OWCP merit
decision, to the filing of this appeal, the Board lacks jurisdiction to review the merits of the case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 13, 2009 appellant, then a 44-year-old mail handler, filed a Form CA-2a
notice of recurrence alleging that he sustained an injury “working on dock doing flat tubs” in
June 2008 and “bending doing sacks” on September 9, 2009.2 He did not incur any time loss
from work.
OWCP informed appellant in a December 10, 2009 letter that his recurrence claim was
converted into a new occupational disease claim and additional evidence was needed. It gave
him 30 days to submit a statement describing the employment factors that contributed to his
condition and a physician’s medical report explaining how the identified factors caused or
aggravated the injury.
In a December 3, 2009 note, Dr. Charles A. Finn, a Board-certified orthopedic surgeon,
diagnosed displacement of a lumbar intervertebral disc without myelopathy. Appellant also
provided physical therapy records from December 29 to 31, 2009.3
By decision dated January 15, 2010, OWCP denied appellant’s claim, finding the
evidence insufficient to establish that he experienced the alleged occupational exposure.
Appellant requested reconsideration on March 17, 2010 and submitted additional medical
evidence. In a September 18, 2009 report, Dr. Finn related that appellant aggravated a lower
back condition due to repetitive bending, twisting and lifting. He noted that appellant previously
sustained a work-related injury in 2003. On examination, Dr. Finn observed lumbar spine
tenderness. X-rays showed degenerative L5-S1 disc narrowing and multilevel anterior
osteophytes. Dr. Finn opined that appellant’s symptoms were “causally related to his work
accident” and released him to modified full-time duty.4
A November 2, 2009 magnetic resonance imaging (MRI) scan report from Dr. Soheil
Sooudi, a Board-certified diagnostic radiologist, exhibited mild degenerative disc disease of the
L4-L5 and L5-S1 as well as an L4-L5 posterior central disc protrusion associated with an annular
tear indenting the anterior thecal sac and mild central canal narrowing.
In a November 3, 2009 note, Dr. Finn diagnosed a herniated disc based on the
November 2, 2009 MRI scan report. A January 20, 2010 follow-up note from Dr. Finn pointed
out that appellant was able to perform his regular job duties with little to no difficulty. Appellant
subsequently received a lumbar epidural steroid injection on April 13, 2010.5
2

Appellant’s original claim involved a September 14, 2003 injury. OWCP File No. xxxxxx646. That claim for
the September 14, 2003 injury is not before the Board on the present appeal.
3

Appellant later submitted physical therapy records for the period January 4 to 8, 2010.

4

Dr. Finn reiterated his opinion in an October 13, 2009 report.

5

Appellant also provided several state workers’ compensation medical forms signed by Dr. Finn for the period
September 18, 2009 to April 20, 2010, all of which essentially duplicated the information found in the physician’s
aforementioned records.

2

On April 30, 2010 OWCP modified the January 15, 2010 decision to reflect that appellant
experienced the alleged occupational exposure. However, it denied the claim, finding that the
medical evidence did not sufficiently demonstrate that the accepted work factors caused or
aggravated his lower back condition.
Appellant requested reconsideration on May 19, 2010 and furnished copies of Dr. Finn’s
November 3, 2009 and January 20, 2010 notes and Dr. Sooudi’s November 2, 2009 MRI scan
report. By decision dated July 23, 2010, OWCP denied the request on the basis that he did not
present new evidence or legal contentions warranting further merit review.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,6
OWCP’s regulations provide that the evidence or argument submitted by a claimant must either:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.7 Where the request for
reconsideration fails to meet at least one of these standards, OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.8
ANALYSIS
On April 30, 2010 OWCP denied appellant’s occupational disease claim on the basis that
the medical evidence did not establish that his lower back condition was causally related to
“doing flat tubs” and “bending doing sacks.” Appellant timely requested reconsideration and
offered copies Dr. Finn’s November 3, 2009 and January 20, 2010 notes and Dr. Sooudi’s
November 2, 2009 MRI scan report, all of which were previously of record. The Board has held
that the submission of evidence which repeats or duplicates evidence already in the case record
does not constitute a basis for reopening a case.9 Appellant neither showed that OWCP
erroneously applied or interpreted a specific point of law nor advanced a relevant legal argument
not previously considered by OWCP.10 Because he failed to meet one of the standards
enumerated under section 8128(a) of FECA, he was not entitled to further merit review of his
claim.
Appellant contends on appeal that he sustained a recurrence of a medical condition
related to his previous back injury in 2003 and that OWCP improperly converted his claim into
one for a new occupational disease. The Board only has jurisdiction to consider whether OWCP
6

5 U.S.C. § 8128(a).

7

E.K., Docket No. 09-1827 (issued April 21, 2010). See 20 C.F.R. § 10.606(b)(2).

8

L.D., 59 ECAB 648 (2008). See 20 C.F.R. § 10.608(b).

9

Edward W. Malaniak, 51 ECAB 279 (2000).

10

See Charles A. Jackson, 53 ECAB 671 n.14 (2002); Daniel O’Toole, 1 ECAB 107 (1948) (request for
reconsideration predicated on legal premise should contain at least an assertion of an adequate legal premise having
some reasonable color of validity).

3

properly denied reconsideration without further merit review based on the evidence and
argument that was before OWCP at the time it issued its July 23, 2010 decision. As discussed
above, the medical evidence did not warrant reopening of the April 30, 2010 decision.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the July 23, 2010 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: October 17, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Denver, CO, Employer
__________________________________________

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

Docket No. 19-0989
Issued: May 12, 2020

Case Submitted on the Record

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

JURISDICTION
On March 29, 2019 appellant filed a timely appeal from December 20, 2018 and
February 7, 2019 merit decisions of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether OWCP abused its discretion by denying claims for travel
reimbursement for medical treatment; and (2) whether OWCP has met its burden of proof to

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the February 7, 2019 decision, OWCP received additional evidence, and that
appellant also submitted evidence with her appeal to the Board. 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.

terminate appellant’s wage-loss compensation and medical benefits, effective February 8, 2019,
as she no longer had residuals or disability causally related to her employment injuries.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On April 9, 1999 appellant, then a 50-year-old registered nurse, filed an occupational
disease claim (Form CA-2) alleging that factors of her federal employment resulted in respiratory
conditions. She explained that she was allergic to dust and had been exposed to dust in the
performance of duty due to construction at the employing establishment. Appellant noted that she
first became aware of her condition and its relation to factors of her federal employment on
February 10, 1997. The claim was adjudicated by OWCP under OWCP File No. xxxxxx900.
Following the initial denial of the claim, appellant requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review. During a January 4, 2000 hearing
before OWCP’s Branch of Hearings and Review, she testified that she began smoking at age 19,
but quit smoking in about 1986. By decision dated June 23, 2000, the hearing representative set
aside the initial denial of the claim and remanded the case for further development. On June 9,
2001 OWCP accepted the claim for allergic rhinitis and chronic sinusitis and later expanded
acceptance of the claim to include extrinsic asthma, other diseases of vocal cords, chronic asthma,
chronic frontal, ethmoidal and sphenoidal sinusitis, other chronic sinusitis, chronic obstructive
asthma, and other diseases of nasal cavity and sinuses.4
In a claim adjudicated by OWCP under OWCP File No. xxxxxx600, OWCP accepted
appellant’s September 13, 1999 occupational disease claim for aggravation of preexisting manicdepressive illness, and expanded acceptance of the claim to include bipolar disorder and posttraumatic stress disorder (PTSD).5 Under that claim appellant received medical benefits and wageloss compensation commencing September 1, 1999. On March 21, 2006 OWCP administratively
combined OWCP File Nos. xxxxxx900 and xxxxxx600, with OWCP File No. xxxxxx900 serving
as the master file.
Following further development of both claims, OWCP received an individual
psychotherapy note from Dana Gruber, Ph.D., dated October 21, 2015, in which she noted seeing
appellant for anxiety.
In a report dated April 22, 2016, Dr. Betty Lo, Board-certified in internal medicine,
described appellant’s active problems and her current medications. She provided physical
3

Order Dismissing Appeal, Docket No. 20-0231 (issued January 27, 2020); Docket No. 18-0771 (issued
January 31, 2019); Order Dismissing Appeal, Docket No. 17-0513 (issued April 25, 2017).
4

The record indicates that appellant was exposed to fumes from paints and cleaning materials and was subjected
to a construction environment, which resulted in her employment-related respiratory problems.
5
On September 13, 1999 appellant filed an occupational disease claim (Form CA-2) alleging that she had developed
an emotional condition due to years of harassment in the performance of duty.

2

examination findings. Dr. Lo’s diagnoses included hypertension, gastric reflux, a sleep
disturbance, and anxiety.
OWCP continued to develop the claims, and in November 2017 referred appellant to
Dr. Glenn M. Gomes, Board-certified in internal and pulmonary medicine, for a second opinion
evaluation regarding her accepted pulmonary conditions. The statement of accepted facts (SOAF)
OWCP provided to him indicated that she began smoking at age 19 and continued to smoke
until 1996.
In a January 11, 2018 report, following his review of the medical record, Dr. Gomes
described physical examination and pulmonary function study findings. He diagnosed mild
intermittent asthma, eosinophilic sinusitis, gastroesophageal reflux with vocal cord dysfunction,
borderline obstructive sleep apnea, and history of cigarette smoking from 1969 to 1996.
Dr. Gomes opined that it was unlikely that the employment-related exposures from decades ago
were the cause of appellant’s present pulmonary complaints, which were more likely than not due
to recent environmental exposures. He noted that she had related that she had a hobby of working
with dogs and cats and that her allergist in recent years was treating her with immunotherapy to
dog and cat dander. Dr. Gomes further noted that this underlined the problem with determining
the etiology of appellant’s asthma/airway obstruction after so many years had passed. He also
noted that it was quite possible that her cigarette smoking alone was the cause of her airway
obstruction noted on pulmonary function studies. Dr. Gomes advised that from a pulmonary
standpoint appellant was capable of sedentary or light work and concluded that her current therapy
was appropriate. He also concluded that her sleep apnea was not work related. Dr. Gomes attached
copies of laboratory studies, including pulmonary function studies.
In August 2018, OWCP referred appellant to Dr. Talaat H. Mohamed, a Board-certified
psychiatrist, for a second opinion evaluation. In an August 30, 2018 report, Dr. Mohamed
described her psychiatric history. Following mental status examination, he diagnosed chronic
depressive reaction, depression, generalized anxiety, and personality pattern disorder mixed type
with schizoid and paranoid major tendencies. Dr. Mohamed opined that, at that time, appellant
had no major mental disorder and there were no signs of symptoms of PTSD. He concluded that
she had no disability. On an attached work capacity evaluation, Dr. Mohamed advised that
appellant was retired and did not want to return to work, but could work part time.
Appellant submitted a request for travel reimbursement for the dates of September 7, 22,
24, and 30, October 17 and 30, and November 2 and 28, 2017, and August 1 and 2, 2018 for
mileage reimbursement for 140 to 160 miles, including a request for mileage to attend her second
opinion appointments.
In a letter dated September 24, 2018, OWCP noted that it had received appellant’s request
for travel reimbursement on the above dates, but that she had not provided verification that she
obtained medical treatment of the dates requested. It advised her that she should submit the
requested documentation within 30 days.

3

By letter dated October 29, 2018, OWCP again informed appellant of the evidence needed
to support her claim for travel reimbursement.6 It afforded her an additional 30 days to respond.
On November 27, 2018 appellant submitted an undated ambulatory summary document
listing her name. The document contained a list of diagnoses, but did not contain any dates of
treatment. Appellant also submitted copies of laboratory results dated October 22, 2018. These
reports did not identify a patient.
By decision dated December 20, 2018, issued under OWCP File No. xxxxxx900 and
OWCP File No. xxxxxx600, OWCP denied authorization for travel reimbursement for medical
treatment for September 7, 22, and 30, October 30, and November 2 and 28, 2017, and August 1
and 2, 2018. It noted that it had researched both OWCP File Nos. xxxxxx600 and xxxxxx900, but
found no evidence to support that appellant received medical treatment for her accepted conditions
on those dates.7
On December 20, 2018 OWCP proposed to terminate appellant’s wage-loss compensation
and medical benefits under both OWCP File Nos. xxxxxx900 and xxxxxx600. It reviewed her
medical history and found that the weight of the medical evidence rested with the second-opinion
evaluations performed by Dr. Gomes and Dr. Mohamed who both advised that residuals of the
accepted employment-related conditions had ceased.
Appellant responded noting her disagreement with the proposed termination, but submitted
no additional medical evidence.
By decision dated February 7, 2019, OWCP finalized the termination of appellant’s wageloss compensation and medical benefits, effective February 8, 2019, finding that the weight of the
medical opinion evidence rested with the opinions of Dr. Gomes and Dr. Mohamed, OWCP
referral physicians, who concluded that she had no residuals or disability due to her accepted
conditions.
LEGAL PRECEDENT -- ISSUE 1
OWCP’s regulations provide that the employee is entitled to reimbursement of reasonable
and necessary expenses, including transportation needed to obtain authorized medical services,
appliances, or supplies.8 To determine a reasonable travel distance, it will consider the availability
of services, the employee’s condition, and the means of transportation. Effective August 29, 2011,
the most recent regulations provide that a round-trip distance of up to 100 miles is considered a
reasonable distance to travel.9 If round-trip travel of more than 100 miles is contemplated, or air
transportation or overnight accommodations will be needed, the employee must submit a written
6

In this letter, OWCP additionally informed appellant that it had also received travel reimbursement claims for 160
miles on September 14 and October 17, 2017, dates that are not at issue in the present appeal.
7
OWCP also informed appellant that, in accordance with its regulations, travel limitations had been reduced to 100
miles round trip, effective December 12, 2012.
8

20 C.F.R. § 10.315(a).

9

Id.

4

request to OWCP for prior authorization with information describing the circumstances and
necessity for such travel expenses. OWCP will approve the request if it determines that the travel
expenses are reasonable and necessary and are related to obtaining authorized medical services,
appliances, or supplies.10
Pursuant to FECA Bulletin No. 14-02 (January 29, 2014), when a claimant submits a travel
reimbursement in excess of 100 miles for a single date of service, the bill will automatically be
suspended, and the Central Bill Processing provider will send notification to OWCP’s claims
examiner.11 FECA Bulletin No. 14-02 notes that in some limited circumstances it may be
necessary for a claimant to travel more than 100 miles on a regular basis, such as when the claimant
lives in a remote area.12
In interpreting this section, the Board has recognized that OWCP has broad discretion in
approving services provided under FECA.13 The only limitation on OWCP’s authority is that of
reasonableness. OWCP may authorize medical treatment, but determine that the travel expense
incurred for such authorized treatment was unreasonable or unnecessary.14
ANALYSIS -- ISSUE 1
The Board finds that OWCP has not abused its discretion in denying appellant’s request
for travel reimbursement for medical treatment.
On December 20, 2018 OWCP denied authorization for travel reimbursement for medical
treatment for the dates September 7, 22, and 30, October 30, and November 2 and 28, 2017, and
August 1 and 2, 2018. There is no evidence of record in either claim file to support that appellant
attended medical treatment on those dates.
In letters dated September 24 and October 29, 2018, OWCP informed appellant of the
evidence needed to establish her travel reimbursement claims. The only evidence appellant
subsequently provided consisted of an undated ambulatory summary document listing her name,
which merely contained a list of diagnoses, but did not contain any dates of treatment. She also
submitted copies of laboratory results dated October 22, 2018. These reports did not identify a
patient.
OWCP has broad discretion in considering whether to reimburse or authorize travel
expenses.15 As the only limitation on its authority is reasonableness, abuse of discretion is
generally shown through proof of manifest error, clearly unreasonable exercise of judgment, or

10

Id. at § 10.315(b).

11

FECA Bulletin No. 14-02 (January 29, 2014).

12

Id.

13

G.C., Docket No. 19-0298 (issued June 24, 2019).

14

Id.

15

Id.

5

actions taken which are contrary to both logic and probable deduction from known facts.16
Appellant did not submit evidence to support that she attended medical appointments for her
accepted conditions on September 7, 22, and 30, October 30, and November 2 and 28, 2017, and
August 1 and 2, 2018, the dates at issue in the present appeal. The Board thus finds that OWCP
has not abused its discretion by denying her travel reimbursement requests for these dates.17
With regard to the issue of travel reimbursement, 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.
LEGAL PRECEDENT -- ISSUE 2
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of compensation benefits.18 It may not terminate compensation
without establishing that the disability had ceased or that it was no longer related to the
employment.19 OWCP’s burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.20 The right to medical
benefits for an accepted condition is not limited to the period of entitlement for disability
compensation.21 To terminate authorization for medical treatment, OWCP must establish that
appellant no longer has residuals of an employment-related condition, which require further
medical treatment.22
OWCP’s procedures provide that an SOAF should include a complete record of all
pertinent facts related to the injury or medical condition. The omission of a critical fact diminishes
the validity of a medical opinion or decision as much as an incorrect statement. Avoiding selective
inclusion of facts in the SOAF prevents a perception of bias and maintains neutrality and
objectivity in the management of the case.23 The procedures continue that, when a medical opinion
is needed to resolve an issue in a case, an SOAF usually accompanies the case and provides the
factual background for the physician’s opinion.24 OWCP is responsible for ensuring that the SOAF
is correct, complete, unequivocal, and specific. When the district medical adviser, second opinion
specialist, or referee physician renders a medical opinion based on an SOAF which is incomplete

16

Id.

17

D.C., Docket No. 18-0080 (issued May 22, 2018).

18

D.M., Docket No. 19-0749 (issued August 19, 2019).

19

E.O., Docket No. 19-0472 (issued August 15, 2019).

20

Id.

21

L.W., Docket No. 19-0173 (issued May 2, 2019).

22

Supra note 18.

23

Federal (FECA) Procedure Manual, Part 2 -- Claims, Statements of Accepted Facts, Chapter 2.809.4a(2)
(September 2009).
24

Id. at Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3 (October 1990).

6

or inaccurate or does not use the SOAF as the framework in forming his or her opinion, the
probative value of the opinion is seriously diminished or negated altogether.25
ANALYSIS -- ISSUE 2
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective February 8, 2019.
OWCP referred appellant to Dr. Gomes in November 2017 for a second opinion evaluation
regarding her accepted pulmonary conditions. However, the July 6, 2017 SOAF provided him did
not accurately address her smoking history. The SOAF listed a history that appellant began
smoking at the age of 19 and continued until 1996. Appellant, however, testified at a January 4,
2000 hearing that she began smoking at age 19 and quit in about 1986. While Dr. Gomes noted
his review of the medical record including the SOAF in his January 11, 2018 report, as noted, the
smoking history in the July 6, 2017 SOAF contains a smoking history that was contradicted by her
January 4, 2000 hearing testimony.
As noted, a SOAF should include a complete record of all pertinent facts related to the
medical condition. The omission or incorrect presentation of a critical fact diminishes the validity
of a medical opinion or decision.26 The Board finds that the question of appellant’s smoking
history is pertinent to the accepted pulmonary conditions. Dr. Gomes opined that it was quite
possible that her cigarette smoking alone was the cause of her airway obstruction noted on
pulmonary function studies. Because he relied on an incorrect SOAF, the Board finds his opinion
is insufficient to meet OWCP’s burden of proof to terminate appellant’s wage-loss compensation
and medical benefits.27
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of compensation benefits.28 As the SOAF contains a smoking history
that is inconsistent with appellant’s hearing testimony the Board finds that OWCP improperly
terminated her wage-loss compensation and medical benefits effective February 8, 2019 without
clarifying her smoking history.29
CONCLUSION
The Board finds that OWCP has not abused its discretion in denying appellant’s requests
for travel reimbursement for medical treatment. The Board further finds that OWCP has not met
its burden of proof to terminate her wage-loss compensation and medical benefits, effective
February 8, 2019.

25

Id. at Chapter 3.600.3a.

26

Supra note 23.

27

See R.P., Docket No.18-0900 (issued February 5, 2019); S.T., Docket No. 08-1675 (issued May 4, 2009).

28

Supra note 18.

29

See D.L., Docket No. 19-1255 (issued January 24, 2020).

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ORDER
IT IS HEREBY ORDERED THAT the December 20, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed. It is further ordered that the February 7, 2019
decision is reversed.
Issued: May 12, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.N., Appellant
and
U.S. POSTAL SERVICE, BOSTON
PROCESSING & DISTRIBUTION CENTER,
Boston, MA, Employer
__________________________________________

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

Docket No. 19-1372
Issued: June 22, 2020

Case Submitted on the Record

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

JURISDICTION
On June 10, 2019 appellant filed a timely appeal from a March 21, 2019 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed from
OWCP’s last merit decision, dated October 19, 2018, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the March 21, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for
the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 3, 2018 appellant, then a 61-year-old electronic technician, filed a traumatic
injury claim (Form CA-1) alleging that he injured his right shoulder on August 25, 2018 when he
felt a twinge and a burning sensation in his right elbow while attempting to adjust the belt/rollers
on a delivery bar code sorter machine while in the performance of duty. On the reverse side of the
claim form, the employing establishment acknowledged that appellant was injured in the
performance of duty. It also indicated that he had stopped work on August 26, 2018.
In a properly executed authorization for examination and/or treatment (Form CA-16) dated
September 4, 2018, Dr. Guido Guidotti, who specializes in occupational medicine, diagnosed a
right elbow sprain. He checked a box marked “Yes” indicating that the condition was caused or
aggravated by the described employment activity of appellant pulling on the belt of a heavy
machine. In an attending physician’s report (Form CA-20) of even date, Dr. Guidotti diagnosed
right elbow sprain, checked a box marked “Yes” that the condition was caused or aggravated by
employment, and found that he was unable to work. In a duty status report (Form CA-7) of even
date, he found that appellant was totally disabled.
An August 26, 2018 x-ray of appellant’s right elbow interpreted by Dr. David Pace, a
Board-certified radiologist, included findings of an elbow joint effusion, which he noted may be
secondary to postoperative and degenerative changes, a possible loose body, and degenerative
changes associated with a history of a previous fracture and surgery along the radial head/neck.3
In a report dated August 29, 2018, Dr. Kai Mithoefer, a Board-certified orthopedic
surgeon, noted that appellant complained of a right elbow injury that he sustained at work on
August 25, 2018. He discussed his history of a previous injury to his elbow as a youth and
subsequent surgery. Dr. Mithoefer noted that appellant had slightly reduced motion, but no pain
after his previous elbow injury and could work without restrictions until his August 25, 2018
injury. He diagnosed a right elbow injury with effusion and noted that, while appellant had
degenerative changes, he had clearly sustained a new injury.
A September 12, 2018 magnetic resonance imaging (MRI) scan report of appellant’s right
elbow, interpreted by Dr. Ketan Patel, a radiology specialist, revealed a small joint effusion,
diffuse synovitis, severe osteoarthritis, severe tendinopathy of the right common extensor tendon,
a chronic radial collateral ligament tear, and a partial-thickness right medial ulnar collateral
ligament tear.
In an updated September 4, 2018 report, Dr. Guidotti provided a history of the August 25,
2018 employment incident. He diagnosed a partial thickness tear of the extensor carpi radialis
3
On August 26, 2018 a physician assistant evaluated appellant for right elbow pain and swelling that had occurred
after he stretched a heavy belt on a machine at work.

2

brevis tendon, tendinopathy of the common extensor tendon from the lateral epicondyle, a radial
collateral ligament tear, a partial thickness distal medial ulnar collateral ligament tear, and
secondary osteoarthritis of the right elbow. Dr. Guidotti attributed the diagnoses to appellant’s
pulling on the belt over rollers on a machine, noting that this “placed an excessive load on his
tendon, causing a tear and aggravating his tendinopathy, ligament tears, and osteoarthritis.”
In a September 18, 2018 Form CA-20 report, Dr. Guidotti diagnosed a right elbow sprain
and checked a box marked “Yes” noting that the condition resulted from the described employment
activity of pulling a belt onto a heavy machine.
By decision dated October 19, 2018, OWCP denied appellant’s traumatic injury claim. It
found that he had established that the August 25, 2018 employment incident occurred as alleged,
that he was in the performance of duty, and that a medical condition had been diagnosed. OWCP
determined, however, that the medical evidence of record was insufficient to establish a diagnosed
condition causally related to the accepted August 25, 2018 employment incident.
On October 29, 2018 appellant requested reconsideration. He resubmitted a September 18,
2018 statement describing the occurrence of the August 25, 2018 employment incident.
By decision dated November 6, 2018, OWCP denied appellant’s request for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
OWCP subsequently received Form CA-17 reports dated October 30 and November 13,
2018 from Dr. Guidotti, who diagnosed right elbow sprain and found that appellant was unable to
work. In Form CA-20 reports dated October 30 and November 27, 2018, Dr. Guidotti diagnosed
right elbow strain and checked a box marked “Yes” indicating that the condition was caused or
aggravated by an employment activity as it had “occurred at work.”
On January 8, 2019 appellant again requested reconsideration. In an accompanying letter
dated January 2, 2019, he advised that he had attached pictures and treatment notes from his
episode of gout in his right foot prior to the August 25, 2018 employment incident, which he
claimed the employing establishment was attempting to represent as his elbow injury. Appellant
asserted that his absence prior to his injury date was due to his gout in his foot, not an elbow injury
as claimed by the employing establishment. He noted that he had missed work three days before
the August 25, 2018 employment incident due to gout in his right foot. Appellant also advised
that he had received a letter of warning that was unrelated to this injury which had since been
rescinded.
With the request for reconsideration, appellant submitted a January 2, 2019 supplemental
factual statement and resubmitted his September 18, 2018 statement, a copy of the August 25,
2018 letter of warning issued by the employing establishment, his grievance appeal form, an
October 26, 2018 settlement agreement regarding an Equal Employment Opportunity (EEO)
complaint, an unsigned urgent care summary report dated August 14, 2018, Dr. Guidotti’s
September 4, 2018 report, and the September 12, 2018 MRI scan of his right elbow.
By decision dated March 21, 2019, OWCP denied appellant’s request for reconsideration
of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

3

LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.4
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.5
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.6 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.7 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.8
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
In his January 8, 2019 request for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law and did not advance a relevant legal
argument not previously considered by OWCP. He noted that he had missed work due to gout in
his foot before the August 25, 2018 incident and that a letter of warning that he had received from
the employing establishment, which he claimed mischaracterized the situs of his medical
condition, was not relevant to the injury and had been withdrawn. OWCP, however, has accepted
that the August 25, 2018 employment incident occurred as alleged. Appellant’s contentions are
not relevant to the underlying issue of whether he has met his burden of proof to establish a medical
condition causally related to the accepted employment incident.9 This is a medical issue which
4

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
5
20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
6

Id. at § 10.607(a). The one-year period begins on the next day after the date of the originally contested decision.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016).
Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received
date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
7

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

8

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

9

J.A., Docket No. 19-1817 (issued April 6, 2020).

4

must be addressed by relevant and pertinent new medical evidence.10 Consequently, he was not
entitled to a review of the merits based on the first and second above-noted requirements under 20
C.F.R. § 10.606(b)(3).11
The Board further finds that appellant has not submitted relevant and pertinent new
evidence not previously considered by OWCP in support of his request for reconsideration. The
underlying issue on reconsideration was whether he has established causal relationship between
his right elbow condition and the accepted August 25, 2018 employment incident. As this is a
medical issue, it must be addressed by relevant and pertinent new medical evidence.12 With his
request for reconsideration, appellant submitted a January 2, 2019 supplemental factual statement
and resubmitted his September 18, 2018 statement and attached photographs, a copy of the
August 25, 2018 letter of warning issued by the employing establishment, his grievance appeal
form, an October 26, 2018 settlement agreement regarding an Equal Employment Opportunity
(EEO) complaint, an unsigned urgent care summary report dated August 14, 2018, Dr. Guidotti’s
September 4, 2018 report, and the September 12, 2018 MRI scan of his right elbow. The Board
finds that this evidence is irrelevant to the issue of causal relationship as it does not contain a
rationalized medical opinion on the issue. The Board further finds that the Form CA-17 and Form
CA-20 reports dated October and November 2018 from Dr. Guidotti, repeated his prior findings.
Evidence that repeats or duplicates evidence already in the case record, or is cumulative in nature,
has no evidentiary value and does not constitute a basis for reopening a case.13 The evidence
submitted in support of his request for reconsideration failed to address the underlying issue of
causal relationship and thus appellant was not entitled to a review of the merits of his claim
pursuant to the third above-noted requirement under 20 C.F.R. § 10.606(b)(3).14
The Board, accordingly, finds that appellant has not met any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.15
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).16

10

See S.P., Docket No. 18-1419 (issued February 27, 2019); Bobbie F. Cowart, 55 ECAB 746 (2004).

11

Y.H., Docket No. 18-1618 (issued January 21, 2020).

12

K.W., Docket No. 18-0970 (issued February 15, 2019).

13

L.C., Docket No. 19-0503 (issued February 7, 2020); A.A., Docket No. 18-0031 (issued April 5, 2018).

14

R.W., Docket No. 18-1324 (issued January 21, 2020).

15

S.H., Docket No. 19-1115 (issued November 12, 2019).

16

The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization
may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed.
The form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); J.G., Docket No.
17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

5

ORDER
IT IS HEREBY ORDERED THAT the March 21, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 22, 2020
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Atlanta, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-237
Issued: October 10, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 6, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ October 11, 2006 merit decision concerning an overpayment of
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received a
$3,230.24 overpayment of compensation; and (2) whether the Office properly determined that
appellant was at fault in the creation of the overpayment of compensation, thereby, precluding
waiver of recovery of the overpayment.
FACTUAL HISTORY
On November 18, 1983 appellant, then a 29-year-old mail handler, sustained injury to his
back when he lifted a mail sack. The Office accepted that he sustained a lumbar sprain and left

herniated nucleus pulposus at L4-5.1 After a period of total disability, appellant returned to
limited-duty work for the employing establishment in February 1984. He periodically stopped
work and received compensation for partial and total disability.
In early 2006 appellant was receiving compensation for total disability. He retired from
the employing establishment on disability retirement effective February 17, 2006 and he elected
to receive retirement benefits from the Office of Personnel Management (OPM) effective
April 1, 2006 instead of disability compensation from the Office.
The record contains June 22, 2006 documents entitled “worksheet” and “manual
adjustment form” suggesting that appellant received $3,281.21 in compensation for the period
April 1 to June 10, 2006 that he was not entitled to receive.2 On August 3, 2006 the Office
advised appellant of its preliminary determination that he received a $3,281.21 overpayment
compensation for the period April 1 to June 10, 2006 because he continued to receive wage-loss
benefits totaling that amount after he elected to receive OPM benefits effective April 1, 2006.
The Office also made a preliminary determination that appellant was at fault in the creation of
the overpayment, thereby, precluding waiver of recovery of the overpayment. In support of this
finding, the Office stated, “You knew or reasonably should have known that you were not
entitled to receive dual benefits during any period and should have returned payments received
from [the Office] after your effective date of OPM benefits commencement.”3 The Office
informed appellant that he should complete and return an attached financial information form
(OWCP-20) even if he did not wish to contest the finding of fault.
In a Form OWCP-20 completed on August 27, 2006, appellant indicated that he and his
wife had $4,100.00 in monthly income. He listed about $4,200.00 in monthly expenses which
included $1,671.00 for mortgage payments, $550.00 for food, $500.00 for clothes, $700.00 for
utilities, $468.00 for his automobile loan and $300.00 for miscellaneous expenses. Appellant
stated that he had $420.00 of assets comprised of $120.00 in his checking account and $300.00
in other personal property or funds. On the form, he asserted that he did know that he received
any incorrect payments. Appellant indicated that he repeatedly advised the Office about issues
regarding his election to receive OPM benefits effective April 1, 2006.
Appellant requested a telephone conference with the Office on the issues of fault and
possible overpayment. The record contains a memorandum detailing the September 21, 2006
conference between appellant and an Office claims examiner, as well a worksheet of financial
information discussed during the conference. Appellant claimed additional monthly expenses
such as $173.00 for automobile insurance, $150.00 for gas, $300.00 for unreimbursed medical
expenses, $25.00 for old medical bills and $68.00 for credit card debt. He indicated that he
1

The Office authorized surgical procedures at L4-5 which were performed in July 1986 and June 1998. The
Office had previously accepted that appellant sustained thoracic and lumbar strains on February 12, 1981 and paid
compensation for periods of disability.
2

On the same date, the Office requested that OPM send a check for $3,281.21. The record contains a July 13,
2006 letter indicating that appellant’s health benefits enrollment was transferred to OPM effective June 11, 2006.
3

The Office also indicated that appellant was at fault because he “should have returned to us any compensation
checks received after April 1, 2006, the period his dual benefit began.”

2

owned a 1999 sports utility vehicle and his wife owned a 1998 sedan. The claims examiner
completed a worksheet indicating that appellant had $4,100.00 in monthly income, $4,487.00 in
monthly expenses, and $11,195.00 in expenses comprised of $120.00 for his checking account
balance and $11.075.00 for his second automobile.4 She provided appellant with 15 days to
provide documentation supporting his claimed monthly expenses.
In a decision dated October 11, 2006, the Office finalized its preliminary determinations
that appellant received a $3,230.24 overpayment of compensation and that he was at fault in
creating the overpayment of compensation, thereby precluding waiver of recovery of the
overpayment.5 The Office stated, “You knew or reasonably should have known that you were
not entitled to receive benefits from both OPM and [the Office] and should have returned the
duplicate payments to [the Office].”6
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Act7 provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his duty.8 Section 8129(a) of the Act provides, in pertinent part:
“When an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which an
individual is entitled.”9
Section 8116(a) of the Act provides that while an employee is receiving compensation or
if he has been paid a lump sum in commutation of installment payments until the expiration of
the period during which the installment payments would have continued, the employee may not

4

Appellant indicated his monthly income was $1,098.00 and his wife’s was $3,002.00. The claims examiner
indicated that appellant’s reported monthly clothing expense seemed high and listed it as $200.00 on her worksheet.
5

Section 8129(b) of the Federal Employees’ Compensation Act provides, “Adjustment or recovery by the United
States may not be made when incorrect payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of this subchapter or would be against equity and good
conscience.” 5 U.S.C. § 8129(b).
6

The Office indicated that it did not receive any additional financial information within the allotted time. It stated
that appellant had resources to repay the overpayment because he had $11,075.00 in assets and determined that the
overpayment should be recovered by deducting $200.00 from appellant’s pay per month. However, as recovery from
continuing compensation benefits under the Act is not involved in this case, the Board has no jurisdiction over the
amount the Office determined that appellant should repay each month. See Levon H. Knight, 40 ECAB 658,
665 (1989).
7

5 U.S.C. §§ 8101-8193.

8

5 U.S.C. § 8102(a).

9

5 U.S.C. § 8129(a).

3

receive salary, pay or remuneration of any type from the United States, except in limited
specified instances.10
In determining whether a claimant is entitled to compensation benefits, the Office is
required by statute and regulation to make findings of fact.11 Office procedure further specifies
that a final decision of the Office must include findings of fact and provide clear reasoning which
allows the claimant to “understand the precise defect of the claim and the kind of evidence which
would tend to overcome it.”12 These requirements are supported by Board precedent.13
ANALYSIS -- ISSUE 1
In its October 11, 2006 decision, the Office determined that appellant received a
$3,281.21 overpayment of compensation for the period April 1 to June 10, 2006 because he
received wage-loss compensation totaling that amount after he elected to receive OPM benefits
effective April 1, 2006. The Board finds that the Office has not adequately explained its basis
for reaching this determination. The record contains June 22, 2006 documents entitled
“worksheet” and “manual adjustment form” suggesting that appellant received $3,281.21 in
compensation for the period April 1 to June 10, 2006 that he was not entitled to receive.
However, these documents, or any other documents in the record, do not provide evidence that
payments were made to appellant totaling $3,281.21. There is no indication in the record that
payments were made on any given date. Nor is there any indication whether they were made
through the sending of a paper check or through direct deposit into appellant’s bank account. In
short, the evidence of record does not establish that appellant received $3,281.21 in
compensation for the period April 1 to June 10, 2006 that he was not entitled to receive.
In its October 11, 2006 decision, the Office also determined that appellant was at fault in
the creation of the overpayment, thereby precluding waiver of recovery of the overpayment.
However, the Office did not adequately explain its reasoning for this conclusion. It merely noted
that appellant should have known that he could not receive both Office and OPM benefits after
April 1, 2006. Additional explanation of this conclusion is especially necessary in the present
case because the Office did not adequately explain when or how appellant received any incorrect
payment.
As noted above, the Office is required by statute and regulation to make findings of
fact. The Office’s October 11, 2006 decision does not contain findings and reasoning which
would allow appellant to understand the precise defect of his claim and the kind of evidence
14

10

5 U.S.C. § 8116(a).

11

5 U.S.C. § 8124(a) provides: “The [Office] shall determine and make a finding of facts and make an award for
or against payment of compensation.” 20 C.F.R. § 10.126 provides in pertinent part that the final decision of the
Office “shall contain findings of fact and a statement of reasons.”
12

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

13

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

14

See supra notes 11 and 12 and accompanying text.

4

which would tend to overcome it. Therefore, the case should be remanded to the Office in order
for it to produce a decision containing adequate findings and reasoning regarding appellant’s
overpayment. After such development as it deems necessary, the Office should issue an
appropriate decision.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether the Office
properly determined that appellant received a $3,281.21 overpayment and whether the Office
properly found he was at fault in the creation of the overpayment such that it was not subject to
waiver. The case is remanded to the Office for further development to be followed by the
issuance of an appropriate decision.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
October 11, 2006 decision is set aside and the case remanded to the Office for further
proceedings consistent with this decision of the Board.
Issued: October 10, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5