United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.D., Appellant
and
U.S. POSTAL SERVICE, AIRPORT MAIL
CENTER, Nashville, TN, Employer
__________________________________________

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

Docket No. 21-0472
Issued: December 2, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 8, 2021 appellant, through counsel, filed a timely appeal from a
September 21, 2020 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). As more than 180 days has elapsed from OWCP’s last merit decision, dated August 22,
2019, to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.
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).
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 2, 2003 appellant, then a 42-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on December 28, 2002 he sustained torn ligaments of the left foot
when dispatching mail from a small parcel and bundle sorter (SPBS) while in the performance of
duty. He stopped work on December 30, 2002 and returned to work on January 2, 2003. OWCP
accepted the claim for a left ankle sprain, and subsequently expanded acceptance of the claim to
include left ankle closed dislocation, left foot and ankle tenosynovitis, left ankle and tarsus
enthesopathy, left tibialis tendinitis, left ankle and foot primary osteoarthritis, and left contracture
of the tendon sheath. On May 28, 2003 appellant underwent surgery for left accessory navicular
excision, insertion of posterior tibial tendon debridement, posterior tibial tendon advancement, and
posterior tibial tendon tenosynovitis debridement. He returned to a modified job on
August 21, 2003. OWCP paid appropriate compensation for intermittent periods of disability
through November 29, 2003. On February 9, 2005 it granted appellant a schedule award for 12
percent impairment of the left leg, which ran for 34.56 weeks during the period from December 9,
2004 to August 7, 2005. OWCP again paid appellant intermittent wage-loss compensation on the
supplemental rolls from October 28, 2006 to July 10, 2015.
On May 24, 2019 appellant filed a claim for a recurrence of medical treatment (Form
CA-2a), commencing December 14, 2018. He noted that he had walked more during the
Christmas season and that his foot and ankle had remained swollen and painful.
In a development letter dated June 3, 2019, OWCP informed appellant that the evidence of
record was insufficient to establish his claim for a recurrence of medical treatment. It advised him
as to the type of medical evidence required to establish his claim and afforded him 30 days to
provide the requested evidence. No evidence was received.
By decision dated August 22, 2019, OWCP denied appellant’s claim for a recurrence for
medical treatment as the evidence of record did not establish his claim.
On August 20, 2020 appellant requested reconsideration. In an attached letter dated
August 16, 2020, he related that he was requesting that OWCP reopen his case based upon new
medical evidence, which he indicated was enclosed. Appellant explained that he had returned to
work full time with restrictions in 2015; however, his physician had indicated that he could return
for further treatment as needed. He further noted that he had sought care for his swollen left foot,
but his physician no longer accepted workers’ compensation patients. Appellant thereafter sought
treatment in December 2019 with Dr. Robert Fitch, Board-certified in emergency and sports
medicine, and Dr. Bethany Gallagher, a Board-certified orthopedic surgeon. He indicated that he
had been off work since May 2020 and was undergoing physical therapy. However, no medical
evidence was enclosed with his request.
By decision dated September 21, 2020, OWCP denied appellant’s request for
reconsideration, finding that he neither raised substantive legal questions, nor included new and
relevant evidence. It explained that appellant failed to submit any evidence in support of his
request.

2

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. 3
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.4
A request for reconsideration must be received by OWCP within one year of th e date of
OWCP’s decision for which review is sought. 5 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 6 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. 7
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).
On August 20, 2020 appellant requested reconsideration. He did not offer any legal
arguments. Therefore, appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, nor did he advance a relevant legal argument not previously considered by
OWCP. Consequently, he is not entitled to a review of the merits of his claim based on the first
and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
In his request for reconsideration, appellant outlined his medical history and his current
claim. The underlying issue in this case is medical in nature, i.e., whether appellant has established
a recurrence of his accepted medical conditions, requiring further medical treatment. This is a

3

Id. at § 8128(a); see A.M., Docket No. 20-1417 (issued July 30, 2021); J.D., Docket No. 19-1757 (issued April 15,
2020); 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).
4

20 C.F.R. § 10.606(b)(3); see A.M., id.; J.D., id.; 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).
5

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of the merit decision for which review is sought. 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 2.1602.4(b).
6

Id. at § 10.608(a); see also A.M., supra note 3; M.S., 59 ECAB 231 (2007).

7

Id. at § 10.608(b).

3

medical issue which must be determined by rationalized medical evidence. 8 Appellant’s own
opinion does not constitute medical evidence as lay persons are not competent to render a medical
opinion.9 While appellant stated in his request that he was submitting new medical evidence in
support of his reconsideration request, no evidence was, in fact, submitted. As he has not provided
relevant and pertinent new evidence, he is not entitled to a merit review based on the third
requirement under 20 C.F.R. § 10.606(b)(3).10
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.
CONCLUSION
The Board finds that OWCP properly denied his request for reconsideration of the merits
of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the September 21, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 2, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
8

E.D., Docket No. 18-0138 (issued May 14, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

D.H., Docket No. 20-0420 (issued April 21, 2021); B.R., Docket No. 17-1661 (issued January 4, 2018); James A.
Long, 40 ECAB 538 (1989).
10

Supra note 7at § 10.608(b); S.Q., Docket No. 20-1208 (issued May 4, 2021); M.P., Docket No. 20-0814 (issued
January 26, 2021); E.R., Docket No. 09-1655 (issued March 18, 2010).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF THE AIR FORCE, TINKER )
AIR FORCE BASE, OK, Employer
)
__________________________________________ )
L.M., Appellant

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

Docket No. 16-1305
Issued: November 27, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 7, 2016 appellant filed a timely appeal from a May 18, 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 merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined appellant’s pay rate for
compensation purposes; (2) whether appellant received a $4,579.11 overpayment of
compensation for the period November 1, 2014 to June 27, 2015; (3) whether OWCP abused its
discretion by refusing to waive recovery of the overpayment; and (4) whether OWCP properly
required repayment of the overpayment by deducting $100.00 from appellant’s continuing
compensation payments every 28 days.

1

5 U.S.C. § 8101 et seq.

On appeal appellant contends that she was not at fault in creation of the $4,579.11
overpayment of compensation and that she was never notified about the erroneous payment she
received.
FACTUAL HISTORY
On April 25, 1994 appellant, then a 45-year-old aircraft engine repairer, filed an
occupational disease claim (Form CA-2) alleging that she sustained depression, anxiety, and
nervousness due to sexual discrimination at work. She became aware of her conditions and
realized their relationship to her employment on April 20, 1994. Appellant stopped work on
April 20, 1994 and returned to limited-duty work on April 25, 1994. She indicated that she was
a WG-5, Step 3 when she filed her claim.
In a September 29, 1995 decision, OWCP denied appellant’s occupational disease claim
finding that the evidence of record was insufficient to establish any discrimination or abuse on
the part of the employing establishment.
On October 5, 1995 appellant requested an oral hearing before an OWCP hearing
representative.
By decision dated August 27, 1996, an OWCP hearing representative reversed the
September 29, 1995 decision. He found that the evidence submitted, including a December 15,
1995 decision of an Administrative Law Judge (ALJ) regarding appellant’s Equal Employment
Opportunity (EEO) complaint were sufficient to establish that she sustained major depression
and generalized anxiety disorder due to sexual discrimination by the employing establishment.2
OWCP accepted the claim for major depression disorder on September 11, 1996.
The claim before the EEO Commission contended that the date of lost exposure to the
sexual discrimination was February 28, 1994. In a September 25, 1996 letter, appellant indicated
that she continued to be exposed to discriminatory acts after she filed her claim, but there is no
evidence to substantiate that contention. She noted that she had not worked since April 9, 1996
due to continued harassment.
On September 26, 1996 appellant filed a claim for wage-loss compensation (Form CA-7)
for the period commencing September 9, 1996. On the form, appellant’s supervisor indicated
that appellant’s base pay rate was $11.01 per hour (WG-5) on the date of injury and $13.40 per
hour (WG-8) on the date she stopped work.
In an October 18, 1996 letter, OWCP requested that appellant submit a medical report
from her physician in support of her claimed work-related disability.
2

The hearing representative noted that the ALJ directed the employing establishment to take immediate action
against appellant’s supervisor, E.G. He also noted that the employing establishment issued an April 1, 1996
decision afterwards which essentially agreed with the ALJ. The Board notes that the ALJ found that, a week prior to
the August 31 and September 1, 1995 EEO hearings, E.G. continued to engage in retaliatory actions with regard to
the matter.

2

On November 19, 1996 OWCP noted that the medical evidence of record showed that
appellant’s attending physician had released appellant to return to work, but she could not return
to the same job she had when she was harassed. Also on that date, the employing establishment
informed OWCP that appellant had been placed in priority placement for a limited-duty position
as of October 25, 1996, but that no job was available.
By letter dated November 22, 1996, OWCP informed appellant that she would be paid
compensation for the period commencing September 9, 1996. A weekly pay rate of $536.003
effective March 12, 1996 was used to compute her gross compensation benefits and deductions
for her elected benefits of health insurance plan.
On February 5, 1997 appellant filed a claim for continuing compensation on account of
disability (Form CA-8) for the period April 8, 19944 to September 8, 1996. She indicated that
the date of injury was April 20, 1994. A September 9, 1996 leave buyback worksheet (Form
CA-7b) indicated that appellant’s weekly pay rate at the time of injury on April 20, 1994 and on
the date she stopped work on April 8, 1994 was $440.40.5
In a March 18, 1998 letter, the Office of Personnel Management (OPM) approved
appellant’s application for disability retirement.
In a letter dated January 31, 2001, appellant contended that she should have received
compensation based on a WG-8 pay rate, not a WG-5 pay rate. She noted that she was a WG-5
by the time her occupational disease claim was denied. Appellant further noted that she later
received wages at the WG-8 pay rate. She indicated that she left the employing establishment on
April 9, 1996 and did not receive compensation benefits until 1997.
By letter dated February 15, 2001, OWCP responded that, when an employee files a
disability claim, it considers the date that the person stopped working as the date that disability
began and therefore it is the effective date and pay rate for compensation purposes. It further
responded that when an employee files a claim for leave buyback or a claim for compensation
for leave used during a period of disability, it considers the date that the claimant started to claim
leave as the effective date that disability began. Despite appellant’s affirmative claim in her
EEO claim that she was last exposed to the discrimination on February 28, 1994, OWCP advised
appellant that it used the effective pay rate date of April 8, 1994 for compensation purposes,
noting that the Form CA-8 she filed on February 5, 1997 claimed compensation for the period
April 8, 1994 through September 8, 1996.

3

The weekly pay rate of $536.00 was based on a 40-hour workweek at $13.40 per hour.

4

The time analysis form signed by appellant and the employing establishment indicated that she claimed four
hours on April 8, 1994 and next claimed wage loss on April 20, 1994.
5

A May 23, 1997 OWCP Daily Roll Payment worksheet indicated that OWCP paid appellant for wage-loss
compensation for 338 hours from April 8, 1994 to April 9, 1996 based on a $440.40 weekly pay rate.

3

Automated computer payment system reports reflected disability payments for the period
April 8, 1994 to September 8, 1996 and intermittent dates from August 17, 1997 to September 6,
2003 based on appellant’s weekly pay rate of $440.40 effective April 8, 1994.6
On October 27, 2004 OWCP expanded acceptance of appellant’s claim to include posttraumatic stress disorder.
In a November 3, 2014 letter, the Social Security Administration (SSA) informed
appellant that her regular retirement benefits would begin on November 1, 2014. It advised that
she was no longer entitled to receive disability retirement benefits as she had reached full
retirement age.
OWCP requested that the SSA provide information regarding any required Federal
Employees Retirement System (FERS) offset. It faxed the questionnaire to the SSA on
November 5, 2014.
On November 12, 2014 appellant advised OWCP that she would start to receive regular
SSA retirement benefits that month.
In a December 1, 2014 letter, OWCP asked appellant to elect OPM retirement benefits or
continuing benefits under FECA. This letter noted that benefits for wage loss paid by OWCP
were not payable for the same period of time as annuity benefits paid by OPM. On December 5,
2014 OWCP advised appellant that it had made an inquiry to the SSA regarding a possible offset
of her retirement benefits. No response was received from the SSA.
In an April 2, 2015 letter, OWCP again requested that the SSA provide information
regarding any required FERS offset.
On June 10, 2015 the SSA noted the pay rates for the following periods with and without
FERS: November 2014, $1,265.40 with FERS and $692.80 without FERS; and December 2014,
$1,286.90 with FERS and $704.50 without FERS.
By letter dated June 26, 2015, OWCP informed appellant that her current monthly benefit
amount was $1,718.20, but that SSA had determined that she would only be entitled to $1,180.60
as her federal service increased her monthly social security payment by $537.60. It noted that
this difference of $537.60 as the portion of social security benefits attributed to federal service
and was the amount that must be offset against her compensation benefits.
By notice dated July 6, 2015, OWCP advised appellant of its preliminary determination
that she had received a $4,579.11 overpayment of compensation for the period November 1,
2014 to June 27, 2015 because she received prohibited dual benefits in the form of wage-loss
compensation under FECA and benefits under SSA without an appropriate offset being made.7
It also made a preliminary determination that she was not at fault in the creation of the
6

The weekly pay rate of $440.40 was based on a 40-hour workweek at $11.01 per hour.

7

OWCP provided calculations based on SSA documentation that revealed that $4,579.11 had not been offset for
the period November 1, 2014 to June 27, 2015.

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overpayment as she was not aware or could have reasonably been expected to know that it had
been paid incorrectly. OWCP requested that appellant complete a Form OWCP-20 and submit
supporting financial documents. Additionally, it notified her that, within 30 days of the date of
the letter, she could request a telephone conference, a final decision based on the written
evidence, or a prerecoupment hearing. An overpayment worksheet dated June 25, 2015
determined that appellant was overpaid during the period November 1, 2014 to June 27, 2015 for
a total of $4,579.11.
On July 13, 2015 appellant requested a telephonic prerecoupment hearing with an OWCP
hearing representative on the issue of a possible waiver of recovery of the overpayment. She
contended that she neither received a letter, nor was she told, that she would be penalized for
receiving social security retirement benefits. Appellant asserted that she should have received
earlier notification before the overpayment amount had accumulated to $4,579.11.
Appellant submitted a completed Form OWCP-20 dated July 13, 2015 and various
financial documents. She contended that a decrease in her monthly FECA and SSA benefit
payments caused a deficit in her finances each month, which required her to obtain loans.
Appellant reported total monthly income of $2,363.60, which included $1,183.00 in SSA
benefits and $1,180.60 in FECA benefits. She also reported total monthly expenses of
$3,471.13, which included $695.00 for rent or mortgage (which would increase to $740.00 in
September 2015), $250.00 for food, $100.00 for clothing, $600.00 for utilities, $600.00 for other
expenses, $565.46 for Check-N-Go, $82.46 for OK Loan Company, $118.00 for Sooner Money
Loans, $159.55 for Ace Loans, $35.00 for JC Penney, $100.00 for cable, $35.00 for Visa credit
card, $8.66 for life insurance premium, $122.00 for unspecified loans. Appellant indicated that
she had no cash on hand, investments, or other personal property and funds.
In a July 13, 2015 narrative statement, appellant contended that OWCP incorrectly
calculated the amount of the overpayment based on the 1994 pay rate rather than her 1996 pay
rate as she had stopped work in 1996. She asserted that her pay rate was improperly reduced
from a WG-8 to a WG-5 by the employing establishment after she filed a discrimination
complaint against her supervisor which was settled in 1997. Appellant also claimed that
repayment of the overpayment would cause financial hardship.
Prior to a March 18, 2016 telephonic hearing, OWCP received appellant’s February 29,
2016 statements restating her contention that her compensation payments should have been
based on her WG-8 pay rate rather than her WG-5 pay rate. Appellant again challenged the
preliminary overpayment determination and reiterated her previous assertion that OWCP had
failed to provide timely notice of its determination.
During the March 18, 2016 telephonic hearing, appellant again asserted that OWCP
should have notified her about the debt before it became so large. She testified that her monthly
expenses exceeded her monthly income. Appellant reported monthly income of $2,343.55. She
also reported expenses, which included $68,000.00 in medical bills related to her recent fall
down stairs, $710.00 for increased current rent which would rise again in May 2016 to $740.00,
$122.94 for cable, $69.66 for two insurance premiums, $486.38 for a car lease, $170.00 for
cellphones, and $144.00 for car insurance. The hearing representative afforded appellant 30 days

5

to submit financial documentation corroborating her monthly expenses and income. Appellant
did not respond.
In a May 18, 2016 decision, an OWCP hearing representative found that appellant
received an overpayment of compensation in the amount of $4,579.11 for the period
November 1, 2014 to June 26, 2015 because she received prohibited dual benefits under FECA
and SSA. He found that there was insufficient evidence to warrant further development of the
pay rate issue as she had not provided any evidence to support her contention that OWCP should
have used a 1996 pay rate rather than the 1994 pay rate. The hearing representative indicated
that the evidence did not document that she continued to be exposed to injurious work factors
after April 8, 1994. He determined that appellant was without fault in the creation of the
overpayment, but denied waiver of recovery because she had not submitted sufficient financial
documentation to support her claimed monthly expenses. The hearing representative required
repayment of the overpayment by deducting $100.00 from her continuing compensation
payments every 28 days.
LEGAL PRECEDENT -- ISSUE 1
Disability means the incapacity, because of an employment injury, to earn the wages the
employee was receiving at the time of injury. It may be partial or total.8 Monetary
compensation for total or partial disability due to an employment injury is paid as a percentage of
monthly pay.9 Section 8101(4) of FECA defines monthly pay for purposes of computing
compensation benefits as the monthly pay at the time of injury, the time disability begins, or the
time disability recurs, if the recurrence is more than six months after returning to full-time work,
whichever is greater.10
OWCP procedures provide that, for occupational disease claims where the claimant
remains exposed to the work factors claimed, the pay rate is the rate of pay effective the date of
the last exposure to causal employment factors.11
Once the proper date is determined, the pay rate for compensation purposes is calculated
in accord with 5 U.S.C. § 8114.12
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined the applicable pay rate for
compensation purposes. The record supports that appellant first stopped work on April 8, 1994,
8

20 C.F.R. § 10.5(f).

9

5 U.S.C. §§ 8105, 8106.

10

Id. at §§ 8101(4); 8114; see also 20 C.F.R. § 10.5(s).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.5(a)
(September 2011). See also Patricia K. Cummings, 53 ECAB 623 (2002).
12

See also supra note 10 at § 10.5(s).

6

the date of injury. The record further supports that OWCP paid her wage-loss compensation for
338 hours from April 8, 1994 to April 9, 1996 based on the date-of-injury pay rate of $440.40 a
week. Before OWCP, appellant raised the issue as to the pay rate used in the calculation of the
$4,579.11 overpayment. She contended that the overpayment was based on her 1994 WG-5
date-of-injury pay rate rather than her WG-8 pay rate on the date she stopped work in
April 1996. However, appellant has failed to submit sufficient evidence to establish her
assertion.
The Board finds that appellant’s February 5, 1997 Form CA-8 and supporting documents
establish that she initially stopped work on April 8, 1994, but had last been exposed to the
discrimination on February 28, 1994. While the record also indicates that appellant had later
returned to work and work stoppages on or about April 9 and September 9, 1996, there is no
indication that she had a qualifying recurrence of disability on these dates.13 For a recurrence of
disability to occur, the injured worker must have physically resumed regular full-time work with
the employing establishment for six months.14 Thus, the record before the Board does not
support any pay rate date later than April 8, 1994.15
LEGAL PRECEDENT -- ISSUE 2
Section 8102 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
duty.16 Section 8129(a) of FECA provides that, 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.17
Section 8116(d) of FECA requires that compensation benefits be reduced by the portion
of SSA benefits based on age or death that, are attributable to federal service and that, if an
employee received SSA benefits based on federal service, his or her compensation benefits shall
be reduced by the amount of SSA benefits attributable to his or her federal service.18
OWCP procedures provide that, while SSA benefits are payable concurrently with FECA
benefits, the following restrictions apply. The offset of FECA benefits by SSA benefits
OWCP procedures make clear that the date when compensable “disability began” is the dates the employee
stopped work due to the injury, not the dates pay stopped. See supra note 11.
13

14

See D.R., Docket No. 16-0378 (issued November 16, 2016).

15

The Board has held that, where an injury is sustained over a period of time, the date of injury is the date of last
exposure to those work factors causing injury. N.F., Docket No. 08-2117 (issued April 21, 2009). Although
appellant argued that discrimination continued, there is no corroborating documentation of her being exposed to
discrimination after April 8, 1994, when she first stopped work.
16

5 U.S.C. § 8102.

17

Id. at § 8129(a).

18

Id. at § 8116(d); see also Janet K. George (Angelos George), 54 ECAB 201 (2002).

7

attributable to employment under FERS is calculated as follows: where a claimant had received
SSA benefits, OWCP will obtain information from the SSA on the amount of the claimant’s SSA
benefits beginning with the date of eligibility to FECA benefits. SSA will provide the actual
amount of SSA benefits received by the claimant/beneficiary. It will also provide a hypothetical
SSA benefit computed without FERS covered earnings. OWCP will then deduct the
hypothetical benefit from the actual benefit to determine the amount of benefits which are
attributable to federal service and that amount will be deducted from FECA benefits to obtain the
amount of overpayment.19
ANALYSIS -- ISSUE 2
The Board finds that appellant received an overpayment of compensation in the amount
of $4,579.11 because she received prohibited dual benefits for the period November 1, 2014 to
June 27, 2015. Appellant received both wage-loss compensation under FECA and benefits under
the SSA for the same period. As previously noted, the portion of the SSA benefits she received
as a federal employee as part of her FERS retirement package concurrently with the benefits she
received under FECA is a prohibited dual benefit.20 OWCP requested and SSA provided
information regarding appellant’s applicable SSA rates and their effective dates. Based on these
rates, it determined that the prohibited dual benefits she received from November 1, 2014 to
June 27, 2015 created an overpayment of compensation in the amount of $4,579.11. The record
includes an overpayment worksheet explaining the overpayment calculation.
The Board has reviewed OWCP’s calculations of the dual benefits appellant received and
finds that OWCP properly determined an overpayment of compensation in the amount of
$4,579.11 for the period November 1, 2014 to June 27, 2015.
LEGAL PRECEDENT -- ISSUE 3
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.21 These statutory
guidelines are found in section 8129(b) of FECA which provides: “Adjustment or recovery of an
overpayment by the United States may not be made when incorrect payment has been made to an
individual who is without fault and when adjustment or recovery would defeat the purpose of
this subchapter or would be against equity and good conscience.”22 If OWCP finds a claimant to
be without fault in the matter of an overpayment, then, in accordance with section 8129(b),
OWCP may only recover the overpayment if it determined that recovery of the overpayment
would neither defeat the purpose of FECA nor be against equity and good conscience.23

19

See L.B., Docket No. 11-2076 (issued August 29, 2012).

20

See P.G., Docket No. 13-0589 (issued July 9, 2013).

21

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

22

5 U.S.C. § 8129(b).

23

M.G., Docket No. 14-1917 (issued January 22, 2015).

8

According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose
of FECA if recovery would cause hardship because the beneficiary needs substantially all of his
or her income (including compensation benefits) to meet current ordinary and necessary living
expenses and also, if the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data provided by the Bureau of Labor Statistics.24 According to 20 C.F.R.
§ 10.437, recovery of an overpayment is considered to be against equity and good conscience
when an individual who received an overpayment would experience severe financial hardship
attempting to repay the debt and when an individual, in reliance on such payments or on notice
that such payments would be made, gives up a valuable right or changes his position for the
worse.25 To establish that a valuable right has been relinquished, it must be shown that the right
was in fact valuable, that it cannot be regained, and that the action was based chiefly or solely in
reliance on the payments or on the notice of payment.26
Section 10.438 of OWCP regulations provides 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. This
information will also be used to determine the repayment schedule, if necessary. 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.27
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly denied waiver of recovery of the overpayment of
compensation.
As appellant was found to be without fault in the creation of the overpayment in
compensation, waiver must therefore 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.
Appellant did not provide sufficient financial information within the appropriate time
period to show that she was entitled to waiver of recovery of the overpayment. Before OWCP,
she asserted that she had various monthly expenses which exceeded her monthly income. The
Board finds that OWCP properly determined that appellant had not provided proof for all of her
24

20 C.F.R. § 10.436. An individual is deemed to need substantially all of her monthly income to meet current
and ordinary living expenses if monthly income does not exceed monthly expenses by more than $50.00. Desiderio
Martinez, 55 ECAB 245 (2004). 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 11 at Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a)
(June 2009).
25

Id. at § 10.437(a), (b).

26

Id. at § 10.437(b)(1).

27

Id. at § 10.438.

9

reported monthly expenses and/or that they constituted ordinary and necessary living expenses.
While several check images documented payments of $695.00 for rent, $8.66 for life insurance
premium, and $118.00 to Sooner Money Loans, appellant failed to submit any documentation in
support of her other reported monthly expenses. In her July 13, 2013 Form OWCP-20, she
claimed monthly expenses for food ($250.00), clothing ($100.00), utilities ($600.00), other
expenses ($600.00), Check-N-Go ($565.46), OK Loan Company ($82.46), Ace Loans ($155.59),
JC Penney ($35.00), cable ($100.00), Visa ($35.00), and unspecified loans ($122.00). During
the March 18, 2016 telephonic prerecoupment hearing, appellant reported an expense of
$68,000.00 for medical bills related to her recent fall and increased or additional monthly
expenses, which included $710.00 for that would rise again in May 2016 to $740.00, $122.94 for
cable, $69.66 for two insurance premiums, $486.38 for car lease, $170.00 for cellphones, and
$144.00 for car insurance. The Board notes, however, that appellant did not provide supporting
documentation to clearly establish such expenses. As noted, it is her responsibility to provide
information about income, expenses, and assets as specified by OWCP.28
For these reasons, appellant did not submit sufficient financial information to establish
that, recovery of the overpayment would defeat the purpose of FECA. She has not shown both
that she needs substantially all of her current income to meet ordinary and necessary living
expenses and that her assets do not exceed the allowable resource base. As appellant has not
shown that her current ordinary and necessary living expenses exceed her monthly income by
more than $50.00 she has not shown that she needs substantially all of her current income to
meet current ordinary and necessary living expenses.29 Because she has not met the first prong
of the two-prong test of whether recovery of the overpayment would defeat the purpose of
FECA, it is not necessary for OWCP to consider the second prong of the test, i.e., whether her
assets do not exceed the allowable resource base.
Appellant also has not established that recovery of the overpayment would be against
equity and good conscience because she has not shown, for the reasons noted above, that she
would experience severe financial hardship in attempting to repay the debt or that she
relinquished a valuable right or changed her position for the worse in reliance on the payment
which created the overpayment.30
Appellant has failed to establish that OWCP abused its discretion by refusing to waive
recovery of the overpayment.
LEGAL PRECEDENT -- ISSUE 4
Section 10.441 of Title 20 of the Code of Federal Regulations provides in pertinent part:
“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
28

See id.

29

See supra note 24.

30

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

10

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 any hardship.”31
ANALYSIS -- ISSUE 4
The record supports that, in requiring repayment of the overpayment by deducting
$100.00 from appellant’s compensation payments every 28 days, OWCP took into consideration
the limited financial information submitted as well as the factors set forth in section 10.441 and
found that this method of recovery would minimize any resulting hardship on her. Therefore, it
properly required recovery of the overpayment by deducting $100.00 from her continuing
compensation payments every 28 days.
CONCLUSION
The Board finds that OWCP properly determined appellant’s pay rate for compensation
purposes. The Board further finds that she received a $4,579.11 overpayment of compensation
for the period November 1, 2014 to June 27, 2015 and OWCP did not abuse its discretion by
refusing to waive recovery of the overpayment. The Board also finds that OWCP properly
required repayment of the overpayment by deducting $100.00 from appellant’s continuing
compensation payments every 28 days.

31

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

11

ORDER
IT IS HEREBY ORDERED THAT the May 18, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 27, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12


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

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

Docket No. 15-1389
Issued: October 16, 2015

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 June 8, 2015 appellant filed a timely appeal of a May 26, 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 the case.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she was
partially disabled for the period April 14 to August 11, 2014 causally related to her accepted
employment condition.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 31, 2014 appellant then a 61-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that on January 30, 2014 she twisted her left knee while performing her
work duties. She worked full time in a compressed schedule of 10-hour shifts. OWCP accepted
appellant’s claim for a left knee strain. Appellant stopped work on January 31, 2014.
OWCP received employing establishment medical records from January 31, 2014 noting
appellant’s treatment by a nurse for a left knee injury. Appellant reported attempting to plug in a
piece of equipment in the operating room when she twisted her left knee. She was diagnosed
with a left knee strain. In a report of emergency treatment dated January 31, 2014, the nurse
indicated that appellant could return to work with restrictions through February 14, 2014.
Appellant came under the treatment of Dr. Janos Ertl, a Board-certified orthopedic
surgeon. In a report dated February 6, 2014, Dr. Ertl treated appellant for a left knee injury.
Appellant reported that on January 30, 2014 while in the operating room she leaned over to put a
plug into the anesthesia machine and twisted her left knee. She reported significant pain and was
unable to perform the duties of her position. X-rays showed mild degenerative joint changes
with tibial spiking. Examination showed complete left knee range of motion, exquisite
tenderness along the medial joint line, and effusion. Dr. Ertl diagnosed medial meniscus tear of
the left knee and possible intra-articular damage. He recommended a magnetic resonance
imaging (MRI) scan and knee brace. Dr. Ertl took appellant off work.
In a work capacity status report dated February 6, 2014, Dr. Ertl noted that appellant was
injured on January 30, 2014 and was unable to return to her usual job or a full-time job with
restrictions for four weeks due to difficulty walking, standing, or sitting. On March 3, 2014 he
treated her for persistent left knee pain. Dr. Ertl noted a February 12, 2014 MRI scan of the left
knee revealed grade III to IV chondromalacia over the medial patellar facet and posteromedial
femoral condyle consistent with chondral defect with a questionable meniscus tear. He noted the
examination was essentially unchanged and diagnosed chondral defects of the left knee and
multiple medical comorbidities. In a March 3, 2014 work capacity status report, Dr. Ertl noted
persistent pain and swelling of the left knee and noted that appellant could perform her usual
work duties with restrictions. In an April 9, 2014 work capacity report, he noted her left knee
pain was improving and she could work five hours a day for four weeks subject to a 15-pound
weight restriction and no cart pumping.
On April 15, 2014 the employing establishment offered appellant a limited-duty position
effective immediately as a nurse. The position conformed with the medical restrictions set forth
by Dr. Ertl on April 9, 2014 which provided a 15-pound weight restriction, no cart pumping, and
work restricted to five hours a day. The employing establishment noted the tour of duty was a
full time, compressed schedule. Appellant accepted the position and returned to work April 14,
2014 on modified duty for five hours a day.
Appellant submitted an MRI scan of the left knee dated February 12, 2014 which
revealed grade III to IV moderate surface area chondromalacia medial facet of the patella and a
grade III to IV chondromalacia posteromedial femoral condyle centrally with no medial meniscal
tear. An April 9, 2014 report from Dr. Ertl noted reevaluating appellant for left knee symptoms.

2

Appellant reported marked improvement after a steroid injection on March 3, 2014. Dr. Ertl
noted that she was undergoing physical therapy and her symptoms progressively increased. He
noted findings of full range of motion, crepitation, with slight antalgic gait. Dr. Ertl diagnosed
status post left knee strain and multiple intra-articular chondral lesions of the left knee. He
returned appellant to work for five hours a day for four weeks with a progression to full duty.
On May 7, 2014 Dr. Ertl noted that she underwent a steroid injection of her left knee on March 3,
2014 which provided approximately five weeks of pain relief. Appellant currently complained
of pain and popping in her left knee that was aggravated by walking and prolonged standing.
X-rays and an MRI scan revealed chondral defects within the medial compartment, medial
femoral condyle, and medial facet of the patella. Dr. Ertl noted that physical examination was
unchanged. He diagnosed left knee injury on January 30, 2014 while at work and symptomatic
left knee with multiple intra-articular injuries. Dr. Ertl recommended surgery.
Appellant filed several CA-7 forms, claims for compensation for partial disability five
hours per day, from April 14 to May 9, 2014, from May 12 to 16, 2014, from May 19 to 22, 2014
and June 3 to 10, 2014. She indicated that her physician restricted her work hours. In Form
CA-7a, time analysis forms, the employing establishment confirmed the hours of leave without
pay.
Appellant submitted a work capacity status report from Dr. Ertl dated May 12, 2014
noting she could return to her usual job for five hours a day and noted “left knee pain.” Dr. Ertl
stated that restrictions would apply until surgery was approved.
In a letter dated May 19, 2014, OWCP requested that appellant submit additional
information to support her claim for compensation. It asked that she submit medical evidence
establishing that partial disability was due to the accepted condition for the period claimed.
In a decision dated July 9, 2014, OWCP accepted the diagnosed condition of left knee
strain, but denied appellant’s claim for compensation for partial disability for five hours a day
beginning April 14, 2014. It advised that the evidence of record fails to support work-related
disability during the period claimed as appellant was capable of working 10 hours per day with
restrictions, which the employing establishment accommodated. OWCP noted that appellant
needed to submit medical reports from Dr. Ertl fully explaining why he proposed to modify work
restrictions.
Appellant requested an oral hearing which was held telephonically on March 9, 2015. At
the hearing, she testified that she returned to light-duty work for eight hours daily, five days a
week, on August 12, 2014. Appellant noted that she had recently retired and that she had not
undergone left knee surgery. An OWCP hearing representative requested that appellant submit
medical evidence attributing her claimed disability to the work injury.
Appellant submitted reports from Dr. Ertl dated February 6 to May 7, 2014, all
previously of record. She submitted a certificate of medical care from Dr. Terry J. Mandel, a
Board-certified family practitioner, who noted that she was totally disabled from December 22,
2011 to January 8, 2012. Appellant submitted a January 31, 2014 prescription note from a health
care provider with an illegible signature who noted that appellant had a knee injury and would be
off work for three weeks. She submitted earnings and leave statements from February 14 to

3

July 26, 2014. Appellant submitted a return to work note dated August 12, 2014 from Dr. Ertl
which noted that she could return to work eight-hour shifts with restrictions.
In a decision dated May 26, 2015, the hearing representative affirmed the July 9, 2014
decision.
LEGAL PRECEDENT
A claimant has the burden of proving by a preponderance of the evidence that he or she is
disabled for work as a result of an accepted employment injury and submit medical evidence for
each period of disability claimed.2 Whether a particular injury causes an employee to be
disabled for employment and the duration of that disability are medical issues.3 The issue of
whether a particular injury causes disability for work must be resolved by competent medical
evidence.4 To meet this burden, a claimant must submit rationalized medical opinion evidence,
based on a complete factual and medical background, supporting a causal relationship between
the alleged disabling condition and the accepted injury.5
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify his or her disability and
entitlement to compensation. For each period of disability claimed, the employee has the burden
of establishing that she was disabled for work as a result of the accepted employment injury.6
ANALYSIS
OWCP accepted appellant’s claim for a left knee strain. Appellant returned to modified
work for five hours daily on April 14, 2014 and claimed wage-loss compensation for the five
hours of work that she missed each day.7 The Board finds that the medical evidence is
insufficient to establish that the period of partial disability of April 14 to August 11, 2014 was
caused or aggravated by the accepted conditions.
In an April 9, 2014 report, Dr. Ertl noted that appellant had a steroid injection on
March 3, 2014 which improved her condition, but that physical therapy increased her left knee
symptoms. He diagnosed status post left knee strain and multiple intra-articular chondral lesions
of the left knee. Dr. Ertl returned appellant to work five hours a day for four weeks. Similarly,
on May 7, 2014, he noted her complaints of pain and popping in the knee which was aggravated
2

See Fereidoon Kharabi, 52 ECAB 291 (2001).

3

Id.

4

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

5

C.S., Docket No. 08-2218 (issued August 7, 2009).

6

Sandra D. Pruitt, 57 ECAB 126 (2005).

7

During the period at issue, April 14 to August 11, 2014, appellant’s job called for working four 10-hour work
shifts a week. On August 12, 2014 she returned to work for eight hours daily, five days a week.

4

by walking and prolonged standing. Dr. Ertl noted unchanged findings and diagnosed
work-related left knee injury on January 30, 2014, symptomatic with multiple intra-articular
injuries. He recommended surgery. In April 9 and May 12, 2014 work capacity reports, Dr. Ertl
noted appellant’s complaints of “left knee pain” and returned her to work for five hours per day
with restrictions. While Dr. Ertl indicated that appellant was partially disabled from work, he did
not explain how the accepted left knee strain caused or contributed to the partial disability
beginning April 14, 2014. Part of appellant’s burden of proof includes submitting rationalized
medical evidence which supports a causal relationship between the period of disability and the
accepted injury.8 Therefore these reports are insufficient to meet appellant’s burden of proof.
Other medical evidence of record is of limited probative value as it does not address the
period of disability at issue. Appellant also submitted evidence from an employing
establishment nurse and provided a report from a healthcare provider with an illegible signature.
The Board has held that treatment notes signed by a nurse are not considered medical evidence
as a nurse is not a physician under FECA.9 Furthermore, medical documents not signed by a
physician are not probative medical evidence and do not establish appellant’s claim.10
On appeal appellant asserts that she submitted sufficient medical evidence supporting
disability for the period claimed. She indicated that she returned to full-time work when she was
physically able and noted that her knee injury ended her nursing career. The Board notes that
appellant failed to submit rationalized medical evidence which supports a causal relationship
between the period of disability and the accepted injury.11 While Dr. Ertl opined that appellant
was partially disabled from work, he did not specifically address how any disability from
April 14 to August 11, 2014 was caused or aggravated by the accepted left knee strain.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to establish that her partial disability for the
period beginning April 14 to August 11, 2014 is causally related to the accepted employment
injury.
8

Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB 332 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
9

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician’s 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).
10

See R.M., 59 ECAB 690 (2008); Bradford L. Sullivan, 33 ECAB 1568 (1982) (where the Board held that a
medical report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as a “physician” as defined in FECA).
11

Jimmie H. Duckett, supra note 8.

5

ORDER
IT IS HEREBY ORDERED THAT the May 26, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 16, 2015
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.L., Appellant
and
DEPARTMENT OF JUSTICE, EXECUTIVE
OFFICE OF IMMIGRATION REFORM,
Miami, FL, Employer
__________________________________________

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

Docket No. 07-1573
Issued: October 22, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On May 14, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ February 26, 2007 merit decision. Under 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 the Office used the proper rate of pay for appellant’s compensation
for the period May 28 to November 30, 2006.
FACTUAL HISTORY
On August 21, 2002 appellant, a 59-year-old legal assistant, injured her right knee, right hip
and lower back when she slipped and fell to the floor. She filed a claim for benefits, which the
Office accepted for lumbar sprain/strain, sprain/strain of the sacroiliac ligament and contusions of
the back, right hip and right knee.

On May 7, 2003 appellant filed a Form CA-7 claim for a schedule award based on a
partial loss of use of her right leg.
On June 6, 2003 the Office granted appellant a schedule award for a 17 percent
permanent impairment to her right leg for the period April 24, 2003 to March 31, 2004, for a
total of 48.96 weeks of compensation. On November 1, 2005 it granted appellant an additional
20 percent schedule award, which amounted to a total 37 percent permanent impairment of the
right leg. The award covered the period August 18, 2005 to September 26, 2006, for a total of
57.6 weeks of compensation. Appellant returned to full duty on August 1, 2005.
On February 25, 2006 appellant filed a Form CA-2a claim for a recurrence of her workrelated disability, effective February 13, 2006. On April 6, 2006 the Office accepted appellant’s
claim and awarded her compensation for a recurrence of disability effective February 19, 2006.
To avoid simultaneous payments, it interrupted her schedule award, beginning February 19,
2006, to permit payment of wage-loss compensation. At that time 182 of the 403.20 days of
compensation had been paid, leaving 221.2 days of compensation to be paid. The Office
informed appellant that she would be paid compensation based on her salary of $46,159.00, or
compensation at the rate of $887.67 per week for temporary total disability beginning
February 19, 2006.
On December 1, 2006 appellant returned to work on as a modified legal assistant with the
Executive Office for Immigration Review, at a weekly salary of $887.67.
By decision dated February 1, 2007, the Office reduced appellant’s compensation to zero
pursuant to sections 8106 and 8115 based on her actual wages as a modified legal assistant.
On February 13, 2007 appellant filed a Form CA-2a claim for recurrence of disability.
She stated on the form that her accepted, work-related condition was “fine”; however, she
advised that she was filing the claim to change her retroactive pay/salary, increase as of
May 28, 2006. Appellant stated that she did not file this claim earlier because of “an error.”
By letter dated February 15, 2007, appellant contended that her compensation was based
on an incorrect rate of pay. She requested a “corrected” retroactive increase in her compensation
payments from May 28 to November 30, 2006 based on a retroactive salary increase she received
effective May 28, 2006.
By decision dated February 26, 2007, the Office found that it had properly based her rate
of pay on the date her most recent recurrence of disability began, February 13, 2007, based on
section 8101(4).1

1

By letter dated March 7, 2007, the Office informed appellant that because she had recently returned to work and
was therefore no longer receiving wage-loss compensation, it was reinstating her schedule award payments as of
December 7, 2006 to July 16, 2007, for the remaining period of 221.2 days of her schedule award.

2

LEGAL PRECEDENT
Section 8101(4) of the Federal Employees’ Compensation Act2 provides:
“‘Monthly pay’ means the monthly pay at the time of injury, or the monthly pay
at the time disability begins, or the monthly pay at the time compensable
disability recurs, if the recurrence begins more than six months after the injured
employee.’”
ANALYSIS
The Board finds that the Office used the proper rate of pay for appellant’s compensation
for the period May 28 to November 30, 2006.
In the present case, appellant was injured on August 21, 2002. The Office accepted her
claim and authorized payment for temporary total disability compensation as of
November 1, 2002. Appellant returned to full-time work on August 1, 2005. The Office
accepted that appellant sustained a recurrence of disability due to her August 21, 2002 right knee
injury as of February 13, 2006 and based her weekly compensation for temporary total disability
on the weekly rate in effect as of February 13, 2006, $887.67. Appellant subsequently received a
retroactive pay increase as of May 28, 2006 and claimed that she was entitled to retroactive
payments based on this increase. The Office, however, rejected this argument in its February 26,
2007 decision. It properly determined that her rate of pay under section 8101(4) of the Act was
based on the rate of pay on February 13, 2006, the date of her recurrence of disability, which
began more than six months after she returned to full-time work. The Office noted that the Act
makes no provision for increasing the amount of compensation due to an increase in salary after
the compensation rate has already been established. As it properly relied on the provisions of
section 8101(4), the Board affirms the February 26, 2007 Office decision.
CONCLUSION
The Board finds that the Office of Workers’ Compensation Programs used the proper rate
of pay for appellant’s compensation for the period May 28 to November 30, 2006.

2

5 U.S.C. § 8101(4).

3

ORDER
IT IS HEREBY ORDERED THAT the February 26, 2007 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: October 22, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
DEPARTMENT OF DEFENSE, DEPARTMENT
OF DEFENSE POLICE, Fort Dix, NJ, Employer
__________________________________________

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

Docket No. 09-1726
Issued: June 8, 2010

Case Submitted on the Record

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

JURISDICTION
On June 16, 2009 appellant, through his attorney, filed a timely appeal from July 24,
2008 and February 25, 2009 merit decisions of the Office of Workers’ Compensation Programs
denying his claim for a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant established that he sustained any permanent impairment to
his left lower extremity causally related to his accepted December 15, 2003 employment injury,
warranting a schedule award.
On appeal, appellant’s representative contends that Dr. Roy Friedenthal, a Board-certified
orthopedic surgeon, does not carry the weight of the medical evidence because his report was not
based on a proper factual background and was not in accordance with the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).1 Counsel
argues in the alternative that a conflict of opinion exists between Dr. Nicholas P. Diamond, an
1

5th ed. 2001.

osteopath, and Dr. Friedenthal regarding whether appellant sustained a permanent impairment
due to his employment injury.
FACTUAL HISTORY
On December 15, 2003 appellant, then a 53-year-old materials handler, sustained a
fracture of the second metatarsal of the left foot when a box dropped on his foot while he was
issuing boots to troops. He stopped work from January 21 to February 4, 2004, when he returned
to light duty. Appellant’s contract was terminated on February 22, 2004. The Office terminated
compensation benefits on June 8, 2004.2
On March 13, 2006 appellant, through his representative, filed a request for a schedule
award.
In a January 5, 2006 medical report, Dr. Diamond reviewed appellant’s medical and
occupational history and noted his complaints of intermittent left foot pain, stiffness and
swelling. Physical examination of the left foot revealed tenderness over the second tarsal and
metatarsal area. Ankle joint circumference taken at 10 centimeters above the patella measured
30 centimeters on the right and 31 centimeters on the left. Plantar flexion and extensions of the
left foot were graded at four out of five in motor strength testing. Dr. Diamond diagnosed posttraumatic left foot second metatarsal fracture and post-traumatic osteoarthritis or Charcot
arthropathy. He opined that the December 15, 2003 employment injury was the competent
producing factor for appellant’s subjective and objective findings on examination. Dr. Diamond
provided a 15 percent lower extremity impairment rating. Citing Tables 17-37 on page 552 and
Table 16-11 on page 484 of the A.M.A., Guides, Dr. Diamond added one percent impairment for
grade four out of five of the left foot plantar flexion medial, one percent impairment for grade
four out of five of the plantar flexion lateral and one percent impairment for grade four out of
five for the common peroneal motor strength deficit. Dr. Diamond also added three percent
impairment for pain.
On November 3, 2006 the Office forwarded Dr. Diamond’s medical report to Dr. Andrew
Merola, a Board-certified orthopedic surgeon and an Office medical adviser, for an evaluation of
permanent impairment in accordance with the A.M.A., Guides.
On November 5, 2006 Dr. Merola advised that there were significant problems with
Dr. Diamond’s examination and that the case should be referred to an impartial medical
examiner.
The Office determined that a conflict of medical opinion existed between Drs. Diamond
and Merola regarding appellant’s permanent impairment due to his employment injury. It
referred appellant to Dr. Thomas J. O’Dowd, a Board-certified orthopedic surgeon, to resolve the
conflict.
2

Based on the report of a second opinion physician, who found that appellant did not continue to experience
residuals of his employment injury, the Office terminated compensation benefits by decision dated June 8, 2004.
This decision was subsequently affirmed by a June 2, 2005 hearing representative’s decision and a January 9, 2007
Office decision.

2

In a May 14, 2007 medical report, Dr. O’Dowd stated that all examination findings were
related to chronic diabetic neuropathic changes, edema and the progressive Charcot changes,
which were more evident in the right foot but present to a lesser extent in the left. He opined that
the second metatarsal fracture healed without deformity and was not related to any present
condition. Dr. O’Dowd noted that it would be useful to review medical reports from appellant’s
treating physician to confirm his impressions.
By letter dated September 28, 2007 and in an October 3, 2007 telephone call, the Office
requested Dr. O’Dowd clarify which documents he wanted to review to confirm his impressions.
Dr. O’Dowd did not respond to these requests. It subsequently referred appellant to
Dr. Friedenthal, a Board-certified orthopedic surgeon, for a second impartial medical evaluation.
In a February 13, 2008 medical report, Dr. Friedenthal reviewed appellant’s medical
history, which was significant for diabetes mellitus. Physical examination revealed diffuse
swelling and deformity around the right hind foot and mild changes on the left hind foot. The
left foot did not show tissue swelling, palpable deformities, localized tenderness or induration.
Ranges of motion in the ankles were restricted to less than 5 degrees of dorsiflexion bilaterally,
20 degrees of plantar flexion on the right and 25 degrees of plantar flexion on the left. Subtalar
motion was severely decreased on the right and moderately decreased on the left without pain.
Neurologic evaluation revealed diffuse decreased sensation in both feet but no focal motor
deficit. Ankle reflexes were absent bilaterally. A January 2, 2004 x-ray of the left foot revealed
a fracture of the mid shaft of the second metatarsal with a copious callus suggesting that the
fracture was six-to-eight weeks old. The x-ray also showed degenerative changes at the first
metatarsal phalangeal joint of a mild-to-moderate degree and chronic calcification. Subsequent
x-rays through March 31, 2005 revealed a healed fracture of the first and second metatarsal.
Dr. Friedenthal diagnosed status post stress fracture in the first and second metatarsal, diabetic
peripheral neuropathy, vascular disease and probable neuropathia of both feet. He opined that
there was no residual attributable to the fracture of the second left metatarsal, which healed
without sequelae. Further, appellant did not complain of any pain in the fractured region and
there were no secondary musculoskeletal changes attributable to the fracture. On the basis of
radiographic studies, he estimated that maximum medical improvement occurred by
approximately May 17, 2004. Dr. Friedenthal noted that appellant had serious conditions
causing significant functional disability, including evidence of vascular disease and neuropathy.
However, neither of these conditions were caused or exacerbated by the December 15, 2003
employment injury. Further, Dr. Friedenthal stated that, due to historical and radiographic
evidence, the second metatarsal fracture was more likely a stress injury related to underlying
neuropathia. Although appellant’s symptoms were noted in response to work-related physical
activity, Dr. Friedenthal opined that it was unlikely the fracture occurred on December 15, 2003
due to the healing revealed by x-ray only 18 days later. He also noted that the x-ray revealed a
first metatarsal fracture with evidence of callus formation which likely developed as part of the
same underlying process.
Dr. Friedenthal concluded that appellant’s fractures were
appropriately treated and healed in a satisfactory alignment without symptomatic or objective
impairment.
On February 29, 2008 the Office referred Dr. Friedenthal’s medical report to Dr. Henry J.
Magliato, a Board-certified orthopedic surgeon and Office medical adviser, for a determination
of appellant’s permanent impairment in accordance with the A.M.A., Guides. In a March 3,

3

2008 report, Dr. Magliato reviewed Dr. Friedenthal’s medical report and noted his findings that
appellant sustained an unrelated impairment of the foot due to Charcot disease. He opined that,
even if there was preexisting loss of motion in the foot due to a previous disease, he would
assume that the accepted employment injury caused some aggravation of the underlying disease.
Using Dr. Friedenthal’s findings, Dr. Magliato added seven percent impairment for five degrees
of dorsiflexion, according to Table 17-11 on page 537 of the A.M.A., Guides and five percent
impairment for moderately decreased subtalar motion with no pain, according to Table 17-12 on
page 537. He provided a 12 percent impairment rating of appellant’s lower extremity.
The Office subsequently requested Dr. Magliato clarify whether his finding of 12 percent
permanent impairment included a rating for pain. On April 21, 2008 Dr. Magliato stated that
three percent impairment should be included for pain according to Table 18-1 on page 574 of the
A.M.A., Guides. He found that appellant sustained 15 percent permanent impairment of the left
lower extremity.
On June 19, 2008 the Office notified Dr. Magliato that he was only requested to provide a
rating based on application of the medical findings to the A.M.A., Guides and that he was not to
provide a medical opinion on impairment. It asked him to provide a rating based on
Dr. Friedenthal’s medical report.
In a July 2, 2008 medical report, Dr. Magliato found that, based on Dr. Friedenthal’s
medical report, appellant did not sustain an objective work-related impairment. He stated that
Dr. Friedenthal’s findings, including a stress fracture of the second metatarsal, lost ankle motion,
decreased sensation and subtalar motion, were due to the unrelated Charcot disease.
Dr. Magliato opined his previous rating should be ignored and that there was no lower extremity
permanent impairment.
By decision dated July 24, 2008, the Office denied appellant’s request for a schedule
award on the grounds that the medical evidence did not support a permanent impairment to a
scheduled member.
On July 30, 2008 appellant, through his representative, filed a request for an oral hearing
before an Office hearing representative. An oral hearing took place on December 3, 2008.
Appellant subsequently submitted an amended copy of Dr. Diamond’s medical report
dated November 24, 2008. Dr. Diamond changed his rating for grade four out of five motor
strength deficit for left foot common peroneal to 10 percent. He continued to find that appellant
sustained 15 percent permanent impairment to the left lower extremity.
By decision dated February 25, 2009, the Office hearing representative modified and
affirmed the July 24, 2008 decision. She found that no conflict existed between Drs. Diamond
and Merola. Thus, Dr. Friedenthal was not an impartial medical adviser but rather a second
opinion physician. Regardless, the hearing representative found that Dr. Friedenthal’s medical
report represented the weight of medical evidence and that Dr. Diamond’s medical report was
not sufficiently rationalized to create a conflict of medical opinion.

4

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing federal 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, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law for all
claimants, the Office has adopted the A.M.A., Guides as the uniform standard applicable to all
claimants.5 Office procedures direct the use of the fifth edition of the A.M.A., Guides, issued in
2001, for all decisions made after February 1, 2001.6
ANALYSIS
The Office accepted that appellant sustained a fracture of the second left metatarsal due
to his employment injury on December 15, 2003. The issue is whether appellant sustained any
permanent impairment causally related to this injury entitling him to a schedule award. The
Board finds he has not met his burden of proof.
On March 13, 2006 appellant filed a request for a schedule award and submitted a
January 5, 2006 medical report from Dr. Diamond, who provided a 15 percent impairment rating.
Dr. Diamond diagnosed post-traumatic left foot second metatarsal fracture and post-traumatic
osteoarthritis or Charcot arthropathy and opined that the conditions were related to appellant’s
December 15, 2003 employment injury. Based on physical examination findings and Tables 1737 and 16-11 found on pages 552 and 484 of the A.M.A., Guides, respectively he calculated a
one percent impairment rating for grade four out of five motor strength deficit of the medial
plantar flexion, one percent impairment for grade four out of five motor strength deficit of the
lateral plantar flexion and one percent impairment for grade four out of five motor strength
deficit of the common peroneal. Dr. Diamond later amended the report to provide 10 percent
impairment for grade four out of five motor strength deficit of the common peroneal. He further
added 3 percent impairment for pain to total 15 percent permanent impairment.
The Office referred Dr. Diamond’s medical report to Dr. Merola, an Office medical
adviser, for an evaluation of permanent impairment. On November 5, 2006 Dr. Merola stated
that there were significant problems with Dr. Diamond’s examination. The Office determined

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id. at § 10.404(a).

6

See FECA Bulletin No. 01-5 (issued January 29, 2001); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Schedule Awards and Permanent Disability Claims, Chapter 2.808.6 (August 2002).

5

that a conflict of medical opinion existed between Drs. Merola and Diamond. It referred the case
to Dr. Friedenthal to resolve the conflict.7
In a February 13, 2008 medical report, Dr. Friedenthal described a full physical
examination and reviewed the results of several x-rays. He diagnosed status post stress fracture
of the first and second metatarsal, diabetic peripheral neuropathy, vascular disease and probable
neuropathia of both feet. Dr. Friedenthal opined that there were no residuals from the second left
metatarsal fracture, which healed without sequelae. Appellant did not complain of any pain and
there were no secondary musculoskeletal changes attributable to the fracture. Dr. Friedenthal did
note some functional disabilities on examination but opined that they were caused by vascular
disease and neuropathy, which were not related to the December 15, 2003 employment injury.
He stated that, based on historical and radiographic evidence, the second metatarsal fracture was
likely a stress injury related to underlying neuropathy. Based on the healing revealed by an x-ray
taken only 18 days after the employment injury, he opined that it was unlikely the fracture
occurred on December 15, 2003. Dr. Friedenthal noted that an x-ray also revealed a first
metatarsal fracture with evidence of callus formation, which likely developed as part of the same
underlying process. He concluded that the employment injury was properly treated and healed in
a satisfactory alignment without symptomatic or objective impairment.
The Board finds that Office incorrectly found that a conflict of medical opinion existed
between Dr. Diamond and Dr. Merola, the Office medical adviser. Dr. Merola did not provide
any medical opinion regarding appellant’s lower extremity impairment or address with any
specificity his disagreement with Dr. Diamond’s findings.8 Therefore, Dr. Friedenthal was not
an impartial medical examiner.9 Even though his medical report is not entitled to special weight,
his report can still be considered for its own intrinsic value and can still constitute the weight of
the medical evidence.10 Dr. Friedenthal provided a comprehensive medical opinion, based on a
detailed physical examination and a full review of prior radiographic evidence and determined
that any current impairment was not related to appellant’s December 15, 2003 employment
injury.11 His opinion was well rationalized and based on a complete and accurate medical and
factual history. Therefore, the Board finds that his opinion represents the weight of the medical
evidence and establishes that appellant is not entitled to a schedule award.
Further, the Board disagrees with appellant’s contention on appeal that a conflict exists
between Dr. Diamond and Dr. Friedenthal. In his report, Dr. Diamond provided impairment
7

The Office initially referred appellant to Dr. O’Dowd. However, Dr. O’Dowd declined to clarify his medical
report despite several requests from the Office. As the Office referred appellant to Dr. O’Dowd, it has the duty to
secure an appropriate report on the relevant issue. It, therefore, properly referred appellant to Dr. Friedenthal to
secure a complete, fully rationalized medical report regarding his degree of permanent impairment. See Robert
Kirby, 51 ECAB 474 (2000).
8

See 5 U.S.C. § 8123(a); Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

9

See Delphia Y. Jackson, 55 ECAB 373 (2004); Cleopatra McDougal-Saddler, id.

10

Id.

11

A schedule award can only be paid for a condition related to an employment injury. See Veronica Williams,
56 ECAB 367 (2005).

6

ratings for motor strength deficit of the lateral plantar flexion, medial plantar flexion and the
common peroneal. Although he referenced Table 17-37, found on page 552 of the A.M.A.,
Guides and Table 16-11 on page 484, he did not explain how he applied the tables to his findings
on examination.12 In determining an impairment rating for neurological motor deficits, the
A.M.A., Guides instructs the examiner to multiply the maximum impairment for each identified
nerve found in Table 17-37, by the grade of impairment according to Table 16-11, which
provides a range of impairment for each grade.13 Dr. Diamond did not specify how he
determined the percentage of impairment out of the range provided in Table 16-11 and did not
show his calculations or explain how he used the referenced tables of the A.M.A., Guides to
arrive at his impairment rating.14 Additionally, he provided three percent impairment for pain.
Chapter 18 of the A.M.A., Guides provides that examiners should not use a pain impairment
rating for any condition that can be adequately rated on the basis of the body and organ
impairment systems given in other chapters of the A.M.A.¸ Guides.15 Therefore, the Board finds
that Dr. Diamond’s impairment rating does not conform to the A.M.A., Guides and is of
diminished probative value.16
The Board notes that Dr. Magliato’s medical reports dated March 3 and April 21, 2008
finding 12 and 15 percent permanent impairment are also of diminished probative value as the
physician later clarified his opinion to find no impairment causally related to the employment
injury.17

12

See J.G., 61 ECAB ___ (Docket No. 09-1128, issued December 7, 2009); Paul R. Evans, Jr., 44 ECAB
646 (1993).
13

A.M.A., Guides 550.

14

See Linda Beale, 57 ECAB 429 (2006). See also John Constantin, 39 ECAB 1090 (1998) (a medical report not
explaining how the A.M.A., Guides are utilized is of little probative value).
15

A.M.A., Guides 571.

16

See A.G., 58 ECAB 582 (2007); Linda Beale supra note 14.

17

The Board further notes that Dr. Magliato’s March 3 and April 21, 2008 medical reports are of diminished
probative value as they were not fully rationalized or based on an accurate medical background. Although
Dr. Magliato noted Dr. Friedenthal’s finding that appellant’s lower extremity impairments were unrelated to his
employment injury, he apparently disagreed with this finding and assumed that the employment injury caused some
aggravation of a preexisting disease. However, he did not rationalize his assumption or otherwise explain why he
disagreed with Dr. Friedenthal’s finding. Moreover, Dr. Magliato did not base his findings on an accurate reading
of Dr. Friedenthal’s medical report. He reported Dr. Friedenthal’s findings that appellant’s impairment was due to
his unrelated Charcot disease. This is not accurate. Although Dr. Friedenthal noted that appellant’s fracture was
likely a stress injury related to underlying neuropathy, he did not attribute the fracture to or even diagnose
Charcot disease. Moreover, in the April 21, 2008 medical report, Dr. Magliato added three percent impairment due
to pain, despite the fact that Dr. Friedenthal stated several times in his report that appellant did not report any
complaints of pain in the fracture area. See James R. Taylor, 56 ECAB 537 (2005).

7

Appellant did not submit any medical evidence providing an impairment rating in
accordance with the A.M.A., Guides. Therefore, he did not meet his burden of proof to establish
his entitlement to a schedule award.18
CONCLUSION
The Board finds that appellant did not establish that he sustained a permanent impairment
to his left lower extremity, causally related to his accepted December 15, 2003 employment
injury, entitling him to a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the February 25, 2009 and July 24, 2008 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: June 8, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

18

The burden is upon the employee to establish that he is entitled to schedule award compensation. D.H.,
58 ECAB 358 (2007); Harold Hendrix, 1 ECAB 54 (1947).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Laredo, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 21-1110
Issued: March 3, 2022

Case Submitted on the Record

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

JURISDICTION
On July 8, 2021 appellant filed a timely appeal from a June 30, 2021 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 met his burden of proof to establish permanent impairment
of a scheduled member or function of the body, warranting a schedule award.
FACTUAL HISTORY
On February 25, 2020 appellant, then a 40-year-old criminal investigator, filed a traumatic
injury claim (Form CA-1) alleging that on January 29, 2020, he injured his right wrist when
1

5 U.S.C. § 8101 et seq.

attempting to perform a bridge maneuver during survival training while in the performance of duty.
He asserted that he heard and felt something “pop” in his right wrist.
On May 14, 2020 OWCP accepted the claim for sprain of unspecified part of right wrist
and hand, and other instability of the right wrist.
In a May 21, 2020 report, Dr. Michael Jones, a Board-certified orthopedic surgeon
specializing in surgery of the hand, provided a history of injury and treatment. On examination of
the right upper extremity, he noted mild subluxation of the ulna with manipulation with the forearm
in full supination. Dr. Jones diagnosed a right wrist sprain. He recommended an MRI scan of the
right wrist to assess whether the TFCC remained detached at the insertion of the ulnar fovea.
A June 3, 2020 MRI scan of the right wrist demonstrated a TFCC tear at its ulnar
attachment with a small bony flake and fluid around the ulnar styloid, small central perforation of
the TFCC with fluid in the distal radioulnar joint, tears of the ulnar collateral and radial collateral
ligaments, thickening and mild intrasubstance increased thickening and mild intrasu bstance
increased signal in the extensor carpi ulnaris tendon compatible with tendinosis, and a small
amount of fluid in the carpometacarpal joint of the right thumb.
In a June 17, 2020 report, Dr. Jones noted that appellant experienced intermittent slight
soreness on the ulnar side of the right wrist, which appellant attributed to his return to full duty.
On examination, he found no abnormalities of the right wrist. Dr. Jones returned appellant to fullduty work with no restrictions.
In a June 17, 2020 Form OWCP-5c, Dr. Jones diagnosed a right wrist sprain with
instability. He returned appellant to full-duty work with no restrictions.
On June 17, 2020 Dr. Jones referred appellant for an impairment rating. On June 26, 2020
his office requested OWCP authorization for an impairment rating to be performed by Snowden
Orthopedic and Occupational Rehabilitation.
In a July 21, 2020 impairment rating, Thomas I. Washington, a physical therapist with
Snowden Orthopedic and Occupational Rehabilitation, reviewed a history of injury and treatment.
On examination of the right upper extremity, he observed right wrist flexion at 50 degrees, right
wrist extension at 40 degrees, radial deviation at 15 degrees, ulnar deviation at 25 degrees, forearm
supination at 75 degrees, and forearm pronation at 70 degrees. Appellant completed a QuickDASH
questionnaire, scored at 18. Mr. Washington provided an impairment rating referring to the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides),2 utilizing the diagnosis-based impairment (DBI) method, to find that, under
Table 15-3, page 396, the class of diagnosis (CDX) for TFCC injury with residual findings,
resulted in a class 1 impairment with a default value of eight. He assigned a grade modifier for
functional history (GMFH) of 1 according to Section 15.3a, page 406 of the A.M.A., Guides, based
on his clinical observations and functional history, a grade modifier for physical examination
(GMPE) of 1 according to Table 15-8, page 408, for minimal palpatory findings consistently
documents, and a grade modifier for clinical studies of (GMCS) of 1 for June 3, 2020 MRI findings
2

A.M.A., Guides (6 th ed. 2009). Table 15-3 is entitled “Wrist Regional Grid: Upper Extremity Impairments.”

2

according to Table 15-9, page 410. Applying the net adjustment formula, (GMFH - CDX) +
(GMPE - CDX) + (GMCS - CDX), or (1-1) + (1-1) + (1-1) = 0, Mr. Washington calculated a net
adjustment of zero. He therefore found an eight percent permanent impairment of the right upper
extremity.
On September 9, 2020 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
In a development letter dated September 16, 2020, OWCP advised appellant of the
additional evidence needed to establish his schedule award claim. It noted that the impairment
rating received was insufficient to support his claim as it had not been countersigned by a qualified
physician. OWCP requested that appellant submit his physician’s opinion as to whether appellant
had attained maximum medical improvement (MMI), the date MMI had been reached, the clinical
findings indicating that the employment condition had reached a fixed and stable state, a detailed
description of all pertinent findings, and a final rating of permanent impairment according to the
applicable criteria of the A.M.A., Guides. It afforded him 30 days to respond.
On October 14, 2020 Dr. Jones examined appellant, noted findings, and provided ROM
measurements of the hand and wrist. He opined that appellant had attained MMI. Dr. Jones
reviewed the impairment rating performed by Mr. Washington and concurred with the rating. He
maintained appellant on full duty with no physical restrictions.
On November 10, 2020 OWCP referred the case record, along with a statement of accepted
facts (SOAF) noting Mr. Washington’s July 21, 2020 impairment rating, to Dr. Arthur S. Harris,
a Board-certified orthopedic surgeon serving as a District Medical Adviser (DMA), for a
permanent impairment rating of the right upper extremity.
Dr. Harris submitted a May 11, 2021 report in which he found that appellant had attained
MMI as of the July 21, 2020 impairment evaluation. He reviewed Mr. Washington’s calculations
and references to the A.M.A., Guides, and concurred with the methodology and calculations as
presented. Dr. Harris found that appellant had eight percent permanent impairment of the right
upper extremity utilizing the DBI method, based on the diagnosed right wrist TFCC tear. He
commented that the range of motion (ROM) rating method would have also resulted in an eight
percent permanent impairment of the right upper extremity.
By decision dated June 30, 2021, OWCP denied appellant’s schedule award claim, finding
that the medical evidence of record did not support permanent impairment of a scheduled member
or function of the body.
LEGAL PRECEDENT
The schedule award provisions of FECA 3 and its implementing federal regulations, 4 set
forth the number of weeks of compensation payable to employees sustaining permanent
3

Supra note 1.

4

20 C.F.R. § 10.404.

3

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 loss of a member shall be determined.
The method used in making such a determination is a matter which rests in the discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. OWCP
evaluates the degree of permanent impairment according to the standards set forth in the specified
edition of the A.M.A., Guides, published in 2009. 5 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. 6
It is the claimant’s burden of proof to establish permanent impairment of a scheduled
member or function of the body as a result of an employment injury. 7 OWCP’s procedures provide
that, to support a schedule award, the file must contain competent medical evidence which shows
that the impairment has reached a permanent and fixed state and indicates the da te on which this
occurred, describes the impairment in sufficient detail so that it can be visualized on review, and
computes the percentage of impairment in accordance with the A.M.A., Guides.8
In addressing upper extremity impairments, the sixth edition requires identification of the
impairment CDX, which is then adjusted by GMFH, GMPE, and GMCS. 9 The net adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).10
The A.M.A., Guides also provide that ROM impairment methodology is to be used as a
stand-alone rating for upper extremity impairments when other grids direct its use or when no other
DBI sections are applicable. 11 If ROM is used as a stand-alone approach, the total of motion
impairment for all units of function must be calculated. All values for the joint are measured and
added.12 Adjustments for functional history may be made if the evaluator determines that the

5

For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides (6 th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017); see also id. at Chapter 3.700, Exhibit 1 (January 2010).
6

See K.J., Docket No. 19-1492 (issued February 26, 2020); P.R., Docket No. 19-0022 (issued April 9, 2018);
Isidoro Rivera, 12 ECAB 348 (1961).
7

See T.H., Docket No. 19-1066 (issued January 29, 2020); D.F., Docket No. 18-1337 (issued February 11, 2019);
Tammy L. Meehan, 53 ECAB 229 (2001).
8

See 5 U.S.C. § 8101(19); J.K., Docket Nos. 19-1420 and 19-1422 (issued August 12, 2020); Francesco C.
Veneziani, 48 ECAB 572 (1997).
9

Supra note 2 at 383-492.

10

Id. at 411.

11

Id. at 461.

12

Id. at 473.

4

resulting impairment does not adequately reflect functional loss and functional reports are
determined to be reliable.13
OWCP issued FECA Bulletin No. 17-06 to explain the use of the DBI methodology versus
the ROM methodology for rating of upper extremity impairments. 14 Regarding the application of
ROM or DBI impairment methodologies in rating permanent impairment of the upper extremities,
FECA Bulletin No. 17-06 provides in pertinent part:
“Upon initial review of a referral for upper extremity impairment evaluatio n, the
DMA should identify: (1) the methodology used by the rating physician (i.e., DBI
or ROM); and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.” (Emphasis in the original.)15
The Bulletin further advises:
“If the rating physician provided an assessment using the ROM method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.”16
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of
impairment specified. 17
ANALYSIS
The Board finds that appellant has established that he sustained eight percent permanent
impairment of the right upper extremity, warranting a schedule award.
The record establishes that on June 26, 2020, Dr. Jones, a Board-certified orthopedic
surgeon specializing in surgery of the hand, referred appellant for an impairment rating by
Snowden Orthopedic and Occupational Rehabilitation which was performed by Mr. Washington,
a physical therapist, on July 21, 2020. On October 14, 2020 Dr. Jones examined appellant, noted
13

Id. at 474.

14

FECA Bulletin No. 17-06 (May 8, 2017).

15

Id.

16

Id.; see also H.H., Docket No. 19-1530 (issued June 26, 2020); A.G., Docket No. 18-0329 (issued July 26, 2018).

17

Supra note 5 at Chapter 2.808.6(f); J.M., Docket No. 20-0602 (issued October 8, 2021); P.W., Docket No.
19-1493 (issued August 12, 2020).

5

findings, and provided ROM measurements of the hand and wrist. He opined that appellant had
attained MMI. Dr. Jones reviewed the impairment rating performed by Mr. Washington and
concurred with the rating.18
Consistent with its procedures, OWCP properly referred the case record to Dr. Harris,
serving as DMA, for an opinion regarding appellant’s permanent impairment in accordance with
the sixth edition of the A.M.A., Guides.19 In his May 11, 2021 report, Dr. Harris agreed that
appellant had sustained an eight percent permanent impairment of the right upper extremity based
on the diagnosed TFCC tear.
The Board finds that the DMA, Dr. Harris, properly considered the findings contained in
the July 21, 2020 impairment evaluation, as reviewed and approved by Dr. Jones, and explained
that appellant’s current impairment was eight percent total permanent impairment of the right
upper extremity based on the diagnosed right wrist TFCC tear. In addition, the DMA properly
utilized the DBI method and considered the ROM method to rate appellant’s accepted upper
extremity condition pursuant to FECA Bulletin No. 17-06.
Therefore, the Board finds that appellant has established eight percent permanent
impairment of the right upper extremity, based upon the reports of Dr. Jones and DMA Dr. Harris.
Consequently, OWCP’s June 30, 2021 decision must be reversed, and the case returned to OWCP
for payment of the schedule award for an eight percent permanent impairment of the right upper
extremity.
CONCLUSION
The Board finds that appellant has established that he sustained eight percent permanent
impairment of the right upper extremity, warranting a schedule award.

18

The Board has held that a report may be considered as probative medical evidence when either signed or reviewed
by a qualified physician. Merton J. Sills, 39 ECAB 572, 575 (1988); see also D.J., Docket No. 21-0414 (issued
October 14, 2021); R.H., Docket No. 20-1684 (issued August 27, 2021); M.W., Docket No. 19-1667 (issued
June 29, 2020).
19

P.T., Docket No. 21-0138 (issued June 14, 2021); see S.C., Docket No. 20-0769 (issued January 12, 2021).

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ORDER
IT IS HEREBY ORDERED THAT the June 30, 2021 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: March 3, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7