United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 09-1711
Issued: March 9, 2010

Case Submitted on the Record

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

JURISDICTION
On June 15, 2009 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ March 20, 2009 merit decision, denying his traumatic injury claim and the May 18,
2009 nonmerit decision denying his request for reconsideration. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(e), the Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether appellant sustained a traumatic injury to his back on
November 12, 2008; and (2) whether the Office properly refused to reopen his case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On December 9, 2008 appellant, a 38-year-old letter carrier, filed a traumatic injury claim
alleging that he sustained a lower back injury on November 12, 2008. He stated that, while
delivering mail with a bag on his shoulder, he “felt severe pain in his lower back.”

Appellant submitted a November 12, 2008 emergency room report, signed by Yolanda A.
Acklin, an advanced nurse practitioner. The report reflected a diagnosis of “muscle spasm,
back.” Appellant stated that his current symptoms began on November 12, 2008, but that the
condition started with an injury in 2006.
The record contains an October 10, 2008 report from Dr. Robert P. Margolis, a Boardcertified internist and neurologist, noting that he examined appellant on August 28, 2008. In a
January 8, 2009 attending physician’s report, Dr. Margolis diagnosed “back pain” and noted that
the date of injury was November 12, 2008. Dr. Margolis indicated by placing a checkmark in the
“yes” box that the diagnosed condition was caused or aggravated by employment activities. He
stated that he first examined appellant on January 31, 2008.
On January 28, 2009 Dr. Barry Feinberg, a Board-certified anesthesiologist, prescribed
physical therapy for appellant’s lower back pain. He diagnosed lumbosacral and thoracic
spondylosis; lumbago; and sacroiliitis. In a January 30, 2009 request for authorization for
physical therapy, Dr. Feinberg reiterated his diagnoses and identified the date of injury as
November 12, 2008.
In a February 9, 2009 letter, the Office informed appellant that although the evidence
established that the incident had occurred as alleged, namely that he had delivered mail on
November 12, 2008, the evidence failed to establish that he had sustained a traumatic injury on
that date. It advised him to submit a physician’s report with a diagnosis and an explanation as to
how his diagnosed condition was causally related to the accepted work-related incident. The
Office asked appellant to answer clarifying questions regarding the circumstances of the alleged
injury. Noting that he had a previous claim, which was accepted on October 29, 2006 for lumbar
sprain, the Office informed him that he could file a Form CA-2a if he believed that his current
condition was a recurrence of the 2006 injury.
On February 17, 2009 appellant indicated that he walked approximately one block,
carrying a high volume of mail (approximately 35 pounds), on November 12, 2008. He stated,
“I’ve had different types of pain, but I’ve never felt the pain that I felt on this day 11-12-2008.”
Appellant reported that he went to the emergency room because he was “in so much pain.”
In a February 20, 2009 report, Dr. Feinberg diagnosed lumbar spondylosis, exacerbated
by work-related injury, sacroiliitis and low back syndrome. Examination findings included
positive Gaenslen’s maneuver on the left with sacroiliac compression. Femoral strength test and
Spurling’s maneuver were positive on the left. Gluteal trigger points on the left were noted.
Increased lumbar par vertebral muscle trigger points were noted, with increased myofascial tone.
Dr. Feinberg stated that appellant’s underlying problem began in August 2006 as a result of an
injury at work, when he was attacked by a dog and fell on his left side. He indicated, however,
that work-related activities, especially walking his mail route, worsened his pain. Dr. Feinberg
stated that the most recent exacerbation occurred on November 12, 2008.
By decision dated March 20, 2009, the Office denied appellant’s claim on the grounds
that the evidence of record was insufficient to establish that the claimed medical condition was
caused by the established work-related event. It noted that Dr. Feinberg did not identify the

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pathology which supported a change at any specific level of appellant’s spine, as a result of
walking his mail route on November 12, 2008.
On March 26, 2009 appellant requested reconsideration. He submitted a copy of
Dr. Feinberg’s February 20, 2009 report, as well as authorization request forms and an
authorization to release information to his union representative.
By decision dated May 18, 2009, the Office denied appellant’s request for
reconsideration on the grounds that the evidence submitted was insufficient to warrant merit
review.
LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act1 provides for payment of compensation for
disability or death of an employee, resulting from personal injury sustained while in the
performance of duty.2 The phrase “sustained while in the performance of duty” is regarded as
the equivalent of the coverage formula commonly found in workers’ compensation laws, namely,
“arising out of and in the course of employment.”3
An employee seeking benefits under the Act has the burden of proof to establish the
essential elements of his claim, including the fact that the individual is an “employee of the
United States” within the meaning of the Act, that the claim was timely filed within the
applicable time limitation period of the Act, that an injury was sustained in the performance of
duty as alleged and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.4 When an employee claims that he sustained a
traumatic injury in the performance of duty, he must establish the “fact of injury,” consisting of
two components which must be considered in conjunction with one another. The first is whether
the employee actually experienced the incident that is alleged to have occurred at the time, place
and in the manner alleged. The second is whether the employment incident caused a personal
injury and generally this can be established only by medical evidence.5
An award of compensation may not be based on appellant’s belief of causal relationship.6
Neither, the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
1

5 U.S.C. §§ 8101-8193.

2

Id. at § 8102(a).

3

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum,
1 ECAB 1 (1947).
4

Robert Broome, 55 ECAB 339 (2004).

5

See also Tracey P. Spillane, 54 ECAB 608 (2003). Deborah L. Beatty, 54 ECAB 340 (2003); Betty J. Smith,
54 ECAB 174 (2002). The term “injury” as defined by the Act, refers to a disease proximately caused by the
employment. 5 U.S.C. § 8101(5). See 20 C.F.R. § 10.5(q), (ee).
6

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

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incidents, is sufficient to establish a causal relationship.7 Simple exposure to a workplace hazard
does not constitute a work-related injury entitling an employee to medical treatment under the
Act.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the established incident or factor of employment.9
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision as to whether appellant
sustained an injury in the performance of duty.
An employee who claims benefits under the Act has the burden of establishing the
essential elements of his claim. The claimant has the burden of establishing by the weight of
reliable, probative and substantial evidence that the condition for which compensation is sought
is causally related to a specific employment incident or to specific conditions of the employment.
As part of this burden, the claimant must present rationalized medical opinion evidence, based
upon a complete and accurate factual and medical background, establishing causal relationship.10
However, it is well established that, proceedings under the Act are not adversarial in nature and,
while the claimant has the burden of establishing entitlement to compensation, the Office shares
responsibility in the development of the evidence to see that justice is done.11
The Office accepted that the incident occurred as alleged, but found that there was no
medical evidence that provided a diagnosis that could be connected to that incident. The Board
finds, however, that the medical evidence of record supports that appellant sustained a workrelated injury on November 12, 2008.
The November 12, 2008 emergency room report reflects that appellant sought treatment
for severe muscle spasms on that date, when his symptoms began. As the report was signed by a

7

Richard B. Cissel, 32 ECAB 1910, 1917 (1981); William Nimitz, Jr., 30 ECAB 567, 570 (1979).

8

20 C.F.R. § 10.303(a).

9

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

10

See Virginia Richard, claiming as executrix of the estate of Lionel F. Richard, 53 ECAB 430 (2002); see also
Brian E. Flescher, 40 ECAB 532, 536 (1989); Ronald K. White, 37 ECAB 176, 178 (1985).
11

Phillip L. Barnes, 55 ECAB 426 (2004); see also Virginia Richard, supra note 10; Dorothy L. Sidwell,
36 ECAB 699 (1985); William J. Cantrell, 34 ECAB 1233 (1993).

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nurse practitioner, it does not constitute probative medical evidence.12 However, it is factually
consistent with appellant’s claim that he was injured on that date.
Dr. Margolis’ January 8, 2009 report also supports appellant’s claim. His opinion that
appellant’s back condition was caused or aggravated by employment factors is not supported by
rationale and is, therefore, of diminished probative value.13 Dr. Margolis’ statement, however,
that the date of injury was November 12, 2008, is consistent with appellant’s allegations that his
condition was exacerbated by the accepted employment event. The Board notes that
Dr. Margolis had been treating appellant for 10 months at the time of the accepted incident and,
therefore, would have been familiar with his medical condition.
Dr. Feinberg diagnosed lumbar spondylosis, exacerbated by work-related injury;
sacroiliitis; and low back syndrome. He stated that appellant’s underlying problem began in
August 2006 as a result of an injury at work, when he was attacked by a dog and fell on his left
side. Appellant indicated, however, that work-related activities, especially walking his mail
route, worsened his pain. Dr. Feinberg stated that the most recent exacerbation occurred on
November 12, 2008. He did not fully describe the mechanism whereby appellant aggravated his
back condition, but he provided an opinion, based on examination findings and an accurate
factual and medical background, that he sustained an aggravation of his preexisting back
condition on November 12, 2008.
The Board notes that, while none of the reports of appellant’s attending physicians is
completely rationalized, they are consistent in indicating that he sustained an employmentrelated injury to his lower back and are not contradicted by any substantial medical or factual
evidence of record. While the reports are not sufficient to meet his burden of proof to establish
his claim, they raise an uncontroverted inference between his claimed condition and the accepted
employment incident and are sufficient to require the Office to further develop the medical
evidence and the case record.14 On remand, the Office shall obtain a rationalized opinion from a
qualified physician as to whether appellant’s current condition is causally related to the accepted
incident and shall issue an appropriate decision in order to protect his rights of appeal.
CONCLUSION
The Board finds that this case is not in posture for a decision as to whether appellant
sustained a traumatic injury to his back in the performance of duty on November 12, 2008.
12

A medical report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as “physician” as defined in 5 U.S.C. § 8101(2) of the Act provides as follows: “(2)
‘physician’ includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and
osteopathic practitioners within the scope of their practice as defined by State law.” See Merton J. Sills, 39 ECAB
572, 575 (1988).
13

The Board has previously found that a report that addresses causal relationship with a checkmark, without a
medical rationale explaining how the work event caused the alleged injury, is of diminished probative value and is
insufficient to establish causal relationship. See Calvin E. King, Jr., 51 ECAB 394 (2000); see also Frederick E.
Howard, Jr., 41 ECAB 843 (1990).
14

See Virginia Richard, supra note 10; see also Jimmy A. Hammons, 51 ECAB 219 (1999); John J. Carlone,
41 ECAB 354 (1989).

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ORDER
IT IS HEREBY ORDERED THAT the March 20, 2009 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision.15
Issued: March 9, 2010
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

15

In light of the Board’s ruling on the first issue, the second issue is moot.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
DEPARTMENT OF THE ARMY,
WATERVLIET ARSENAL, Watervliet, NY,
Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1633
Issued: September 9, 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 September 16, 2020 appellant, through counsel, filed a timely appeal from a July 15,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met his burden of proof to establish binaural hearing loss
causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On September 22, 2019 appellant, then a 54-year-old machinist, filed an occupational
disease claim (Form CA-2) alleging that he developed binaural hearing loss and tinnitus due to
factors of his federal employment. He asserted that the employing establishment failed to provide
adequate hearing protection and that he eventually had to accept a lower position within the Federal
Government to conserve his hearing. Appellant indicated that he first became aware of his hearing
loss and tinnitus on December 4, 2018 and first realized its relation to his federal employment on
December 8, 2018.3
In support of his claim, appellant submitted an official copy of his machinist position
description and a May 13, 2018 request for personnel action (Standard Form (SF)-52).
Appellant also submitted hearing conservation data, including a reference audiogram dated
November 13, 2017 and an audiogram dated February 13, 2019. Using the frequencies of 500,
1,000, 2,000, and 3,000 Hertz (Hz) a reference audiogram dated November 13, 2017 documented
appellant’s hearing as follows: 5, 0, 15, and 50 decibels (dBs) in the left ear and 0, 10, 5, and 40
dBs in the right ear. Using the same frequencies, a February 13, 2019 audiogram revealed
appellant’s hearing measured as: 15, 20, 25, and 60 dBs in the left ear and 15, 20, 10, and 50 dBs
in the right ear.
In a development letter dated October 23, 2019, OWCP informed appellant of the
deficiencies in his claim. It advised him of the type of factual and medical evidence necessary to
establish his claim and provided a questionnaire for completion regarding noise exposure. OWCP
afforded him 30 days to respond.
In an April 9, 2019 medical report, Dr. Richard Demaio, a Board-certified otolaryngologist ,
noted that appellant presented with binaural sensorineural hearing loss that began two years ago
and had lasted three months. He indicated that appellant experienced difficulty discriminat ing
voices, tinnitus, and hearing loss. Dr. Demaio also noted that appellant had been working in loud
environment, eight hours a day, six days a week for 13 to 14 months. He indicated that although
appellant wore small earplugs, he was not provided with the requested hearing protection.
Dr. Demaio diagnosed binaural sensorineural hearing loss and tinnitus. He opined that appellant ’s
diagnosed conditions were “most likely” due to work-related loud exposure.
In a November 3, 2019 response to OWCP’s questionnaire, appellant indicated that since
February 2019, he was employed as a metal forming machine operator at a different department.
He noted that he currently had limited exposure to environmental noise. Appellant stated that he
still experienced difficulty communicating with limited decibel levels. He noted his history of
employment beginning 1982. Appellant stated that he worked as a machinist at the employing
3

The record indicates that appellant stopped working at the employing establishment in February 2019.

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establishment from January 2018 to February 2019. He alleged that he was exposed to severe
environmental noise at work including a firing block and the constant banging of pipes from the
boiler/stream heating system, as well as exhaust fans that made an exceptional amount of noise.
Appellant asserted that this contributed to the constant ringing in both ears for nine hours a day,
six days a week. He noted that he had no hobbies involving exposure to loud noise.
On November 26, 2019 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and a copy of the medical record, to Dr. Michael Kortbus, a Board-certified
otolaryngologist, for a second opinion evaluation to determine the nature and extent of any
employment-related hearing loss.
In a January 7, 2020 report, Dr. Kortbus noted that appellant presented for hearing loss
since the end of 2018, reporting that the left ear was worse than the right. He reviewed his history
of audiogram testing, including the testing results from November 2017 and February 2019, and
conducted a physical examination, which revealed normal findings. Dr. Kortbus noted that
appellant demonstrated significant speech understanding, which was not typical for critical speech
range mildly impaired. He diagnosed binaural sensorineural hearing loss and binaural nonpulsatile subjective tinnitus. Dr. Kortbus also reviewed appellant’s audiogram performed that day,
which demonstrated at 500, 1,000, 2,000, and 3,000 Hz losses of 40, 35, 35, and 60 dBs on the
left, respectively and 40 30, 35, and 60 dBs on the right, respectively. The audiogram was
performed by an audiologist who documented timely calibration of testing equipment. In response
to questions, Dr. Kortbus noted that the November 13, 2017 audiogram revealed moderate-tomoderately severe hearing loss at 3,000 Hz and above the left ear and mild-to-moderate loss at
3,000 Hz and above at the right ear. He indicated that the subsequent evaluation in February 2019
revealed decline in pure tone thresholds, bilaterally. When comparing the audiometric findings to
those from the beginning of exposure, Dr. Kortbus indicated that appellant did not show
sensorineural hearing loss that was in excess of what would be normally predicated on the basis
of presbycusis. He opined that appellant’s current hearing loss was consistent with age-related
loss and checked a box indicating that his hearing loss was not due, in part or all, to noise exposure
in his federal employment. Dr. Kortbus explained that the typical pattern for presbycusis was
demonstrated and that the noise frequencies were not the only affected areas.
By decision dated February 25, 2020, OWCP denied appellant’s claim, finding that the
medical evidence of record was insufficient to establish causal relationship between his diagnosed
hearing loss and his work-related noise exposure.
On February 28, 2020 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review. In a March 11, 2020 letter, counsel asserted that
appellant’s exposure to loud noise in federal employment started in 2010. He also argued that
Dr. Kortbus’ rationale was illegible.4 A telephonic hearing was held on June 9, 2020.
In a June 27 and 30, 2020 statement, counsel again argued that OWCP’s February 25, 2020
decision was based on an insufficiently rationalized report containing illegible handwriting, which
4

The Board notes that counsel also requested that Dr. Kortbus be subpoenaed to appear during the telephonic
hearing. On May 5, 2020 OWCP denied counsel’s request to subpoena Dr. Kortbus, finding that his testimony was
not considered necessary when he had already provided a written report.

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did not adequately explain why the extremely loud noise exposure over a decade of appellant’s
federal employment did not contribute to his hearing loss.
By decision dated July 15, 2020, OWCP’s hearing representative affirmed the February 25,
2020 decision. She found that the weight of the medical opinion evidence with respect to the cause
of appellant’s hearing loss continued to rest with the well-rationalized opinion of Dr. Kortbus,
OWCP’s referral physician.
LEGAL PRECEDENT
An employee seeking benefits under FECA 5 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,6 that an injury was sustained in the performance of duty, as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.7 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 8
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the identified employment factors. 9
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 10 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background. 11 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical

5

Supra note 2.

6

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
7

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
8
P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
9

S.C., Docket No. 18-1242 (issued March 13, 2019); Victor J. Woodhams, 41 ECAB 345 (1989).

10

W.M., Docket No. 14-1853 (issued May 13, 2020); T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB
238 (1996).
11

M.V., Docket No. 18-0884 (issued December 28, 2018).

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rationale explaining the nature of the relationship between the diagnosed condition and appellant ’s
specific employment factor(s). 12
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish binaural hearing
loss causally related to the accepted factors of his federal employment.
OWCP referred appellant to Dr. Kortbus for a second opinion evaluation regarding his
hearing loss claim. In his January 7, 2020 report, Dr. Kortbus, he reviewed appellant’s medical
record and SOAF, related examination findings, and diagnosed binaural sensorineural hearing loss
and binaural non-pulsatile subjective tinnitus. He opined that appellant’s current hearing loss was
consistent with age-related loss. Dr. Kortbus explained that the typical pattern of presbycusis was
demonstrated in his audiometric findings. He concluded that appellant’s binaural hearing loss was
not due, in part or all, to noise exposure in his federal employment.
The Board has reviewed the opinion of Dr. Kortbus and notes that it has reliability,
probative value, and convincing quality with respect to its conclusions regarding the relevant issue
of the present case. He provided a thorough factual and medical history and accurately
summarized the relevant medical evidence. 13 Dr. Kortbus further provided medical rationale for
his opinion by explaining that the nature of appellant’s hearing loss did not support an
employment-related cause, but rather showed a naturally progressing hearing loss due to age.
In support of his claim, appellant submitted an April 19, 2019 medical report from
Dr. Demaio. Dr. Demaio diagnosed binaural sensorineural hearing loss and tinnitus. He opined
that appellant’s hearing loss and tinnitus were “most likely” due to work-related loud exposure.
The Board has held that medical opinions that suggest that a condition was “likely” caused by
work activities are speculative or equivocal in character and have limited probative value. 14 As
such, Dr. Demaio’s report is insufficient to establish appellant’s hearing loss claim.
As appellant has not submitted rationalized medical evidence establishing hearing loss due
to factors of his federal employment, the Board finds that he has not met his burden of proof.
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.

12

Id.; Victor J. Woodhams, supra note 9.

13

See J.W., Docket No. 18-0670 (issued September 11, 2018) (finding that a probative medical opinion must be
based on a complete factual and medical background of the employee).
14

See D.A., Docket No. 20-0951 (issued November 6, 2020).

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CONCLUSION
The Board finds that appellant has not met his burden of proof to establish binaural hearing
loss causally related to the accepted factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the July 15, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: September 9, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Dearborn, MI, Employer
__________________________________________

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

Docket No. 14-1492
Issued: November 25, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 16, 2014 appellant, through his attorney, filed a timely appeal from an April 9,
2014 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 sustained any employment-related permanent impairment
warranting a schedule award under 5 U.S.C. § 8107.
FACTUAL HISTORY
The case was previously before the Board. Appellant filed an occupational disease claim
(Form CA-2) on May 18, 1996 alleging a back injury resulting from employment duties as a
letter carrier. OWCP accepted the claim for aggravation of herniated lumbar discs at L4-5 and
1

5 U.S.C. § 8101 et seq.

L5-S1.2 On August 6, 1996 appellant underwent facet nerve denervation surgery at L4-S1. He
worked in a light-duty position and then filed a claim for a recurrence of disability as of
April 5, 2010. OWCP denied the claim. The Board reviewed a July 18, 2013 OWCP decision
that denied merit review of the claim.3
On December 9, 2011 appellant submitted a claim for a schedule award. By letter dated
December 19, 2011, OWCP advised him that there was no schedule award for the back itself, but
an award could be paid for permanent impairment to the extremities. It notified appellant that
The Guides Newsletter (July/August 2009) a supplemental publication of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) was used to
rate impairments to the extremities from spinal nerve injuries. Appellant submitted medical
evidence in 2013, but it did not address the issue of permanent impairment.
On April 24, 2013 OWCP referred appellant, medical records, and a statement of
accepted facts to Dr. Emmanuel Obianwu, a Board-certified orthopedic surgeon. In a report
dated May 18, 2013, Dr. Obianwu reviewed a history of medical treatment and provided results
on examination. He diagnosed chronic multilevel lumbar degenerative disc disease and mild
central canal stenosis at L3-L5. Dr. Obianwu stated, “There is no involvement of the lower
extremities in this gentleman. In this gentleman, there were no findings that would even allow
for the terminology of radiculopathy. No weakness of any of the muscle groups in the lower
extremities is noted. No reflex changes that would reflect some nerve root involvement are
noted. There is not an iota of clinical evidence that would suggest spinal nerve impairment with
involvement of the lower extremities. Therefore, at this time, calculation of an impairment
rating is not feasible.”
In a report dated June 28, 2013, Dr. Obianwu indicated that he had reviewed a June 14,
2013 nerve conduction report. He stated that the studies were negative for bilateral lumbosacral
radiculitis or neuropathy. Dr. Obianwu concluded, “Therefore, both clinically and by
electrodiagnostic studies, no impairment of the lower extremities in this man are attributable to
his spinal condition.”
OWCP referred the case to Dr. Morley Slutsky, an OWCP medical adviser, for review.
In a report dated July 28, 2013, Dr. Slutsky opined that there was no basis for an impairment
rating under The Guides Newsletter. He noted that there was no evidence of any sensory or
motor deficit to either lower extremity.
By decision dated August 15, 2013, OWCP determined that appellant was not entitled to
a schedule award. It found that the weight of the medical evidence did not establish any
employment-related permanent impairment to a scheduled member of the body.

2

An August 26, 1996 letter identified the accepted condition as a temporary aggravation. The statement of
accepted facts prepared on April 24, 2013 describes the accepted condition as an aggravation of herniated lumbar
discs at L4-5 and L5-S1.
3

Docket No. 13-2080 (issued February 6, 2014).

2

Appellant requested a hearing before an OWCP hearing representative, which was held
on February 10, 2014. At the hearing, appellant’s representative argued that The Guides
Newsletter had no scientific basis. Appellant also argued that there were clinical findings that
did show impairment. No additional medical evidence was submitted.
In a decision dated April 9, 2014, the hearing representative affirmed the August 15,
2013 decision. The hearing representative found the medical evidence did not establish a ratable
permanent impairment to a scheduled member of the body.
LEGAL PRECEDENT
5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of
use of a member or function of the body, the claimant is entitled to a schedule award for the
permanent impairment of the scheduled member or function.4 Neither FECA nor the regulations
specify the manner in which the percentage of impairment for a schedule award shall be
determined. For consistent results and to ensure equal justice for all claimants, OWCP has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.5 For schedule
awards after May 1, 2009, the impairment is evaluated under the sixth edition.6 For peripheral
nerve impairments to the upper or lower extremities resulting from spinal injuries, OWCP
procedures indicate that The Guides Newsletter “Rating Spinal Nerve Extremity Impairment
Using the Sixth Edition” (July/August 2009) is to be applied.7
To be of probative value, the opinion of the physician must be based on a complete
factual and medical background, of reasonable medical certainty and supported by medical
rationale explaining the opinion. The weight of medical evidence is determined by its reliability,
its probative value, its convincing quality, the care of the analysis manifested and the medical
rationale expressed in support of the physician’s opinion.8
ANALYSIS
OWCP accepted an aggravation of herniated lumbar discs at L4-5 and L5-S1. Appellant
seeks a schedule award under 5 U.S.C. § 8107. It is well established that neither FECA nor its
regulations provide for a schedule award for impairment to the back, spine or to the body as a

4

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

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

6

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

7

See G.N., Docket No. 10-850 (issued November 12, 2010); see also Federal (FECA) Procedure Manual, Part 3
-- Medical, Schedule Awards, Chapter 3.700 (January 2010). The Guides Newsletter is included as Exhibit 4.
8

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

3

whole.9 The issue is whether the medical evidence establishes any permanent impairment to his
legs based on the accepted lumbar condition.
OWCP referred appellant to Dr. Obianwu for examination and an opinion with respect to
a permanent impairment. Dr. Obianwu provided a complete report with results on examination.
He found that appellant did not have any permanent impairment to the legs, and he explained his
opinion. Dr. Obianwu found no clinical evidence of any radiculopathy, weakness or reflex
changes. There were no sensory or motor deficits on examination. Dr. Obianwu provided an
unequivocal opinion that there was no clinical evidence that would suggest spinal nerve
impairment with involvement of the lower extremities. He also reviewed an electrodiagnostic
study dated June 14, 2013 and advised that it did not support radiculitis or neuropathy.
With respect to a spinal nerve injury affecting the legs, the impairment would be
determined in accordance with The Guides Newsletter. Appellant argued that The Guides
Newsletter has no scientific basis and should not be used to evaluate a permanent impairment in
this case. However, the Board has addressed this argument regarding The Guides Newsletter in
prior cases. As the Board explained in J.S., OWCP has discretion to adopt and utilize various
editions of the A.M.A., Guides for assessing permanent impairment.10 OWCP has adopted the
sixth edition for rating impairment of the upper or lower extremities caused by a spinal injury, as
provided in section 3.700 of its procedures,11 which memorializes proposed tables outlined in
The Guides Newsletter (July/August 2009). The Board has recognized OWCP’s adoption as a
proper exercise of discretion in order to provide a uniform standard applicable to each claimant
for a schedule award.12
The second opinion physician’s report was referred to an OWCP medical adviser for
review, in accordance with OWCP procedures.13 Dr. Slutsky concurred in a July 29, 2013 report
that no impairment under The Guides Newsletter was established.
The Board finds the weight of the medical evidence of record does not establish an
employment-related permanent impairment to appellant’s legs based on the accepted lumbar
condition. OWCP properly determined he was not entitled to a schedule award under 5 U.S.C.
§ 8107.
Appellant may request a schedule award at any time before OWCP based on new medical
evidence with respect to an employment-related permanent impairment.

9

See James E. Jenkins, 39 ECAB 860 (1988); 5 U.S.C. § 8101(20).

10

Docket No. 14-920 (issued August 19, 2014).

11

Supra note 7.

12

Id. See also D.W., Docket No. 14-428 (issued June 17, 2014).

13

Supra note 7 at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6
(February 2013).

4

CONCLUSION
The Board finds that appellant has not established an employment-related permanent
impairment based on his accepted lumbar condition.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 9, 2014 is affirmed.
Issued: November 25, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.T., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Daytona Beach, FL,
Employer
__________________________________________

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

Docket No. 08-367
Issued: June 16, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 14, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ April 26, 2007 merit decision terminating his compensation and a
July 24, 2007 nonmerit decision denying his reconsideration request. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the merits of this case.1
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation effective April 26, 2007 on the grounds that he no longer had residuals of his
September 14, 2004 employment injury after that date; and (2) whether the Office properly
denied appellant’s request for further review of the merits of his claim pursuant to 5 U.S.C.
§ 8128(a).
1

The record also contains an April 17, 2007 schedule award decision of the Office. Appellant has not appealed
this decision to the Board and the matter is not currently before the Board.

FACTUAL HISTORY
The Office accepted that on September 14, 2004 appellant, then a 30-year-old
transportation security screener, sustained a left shoulder strain when he lifted a large duffel bag
from the ground and threw it onto a conveyer belt.2 It paid appellant compensation for periods of
disability.
On November 11, 2004 Dr. Frank L. Denoff, an attending Board-certified orthopedic
surgeon, indicated that appellant continued with left shoulder symptoms. He stated that
appellant should have a neurology consultation to rule out a brachial plexus injury. In several
reports dated in 2005 and 2006, Dr. Denoff continued to diagnose left shoulder pain with mild
secondary tendinitis and “neurogenic injury.” He continued to indicate that appellant had a
possible brachial plexus injury involving the left shoulder.
In late 2005 and early 2006, the Office referred appellant to Dr. Barry Lotman, a Boardcertified orthopedic surgeon, and Dr. Gary Weiss, a Board-certified neurologist, for further
evaluation of his employment-related condition.
In a January 6, 2006 report, Dr. Lotman stated that appellant mostly exhibited left neck,
shoulder and arm symptoms. He noted that based on the examination and medical history he felt
that appellant sustained a cervical disc herniation on September 14, 2004. Dr. Lotman indicated
that appellant could not return to his date-of-injury job but could perform limited-duty work. He
stated that he was attaching a work restrictions form, but the record does not contain any such
form dated around that time. In a February 24, 2006 report, Dr. Lotman stated that the
electromyogram (EMG) and nerve conduction velocity (NCV) studies obtained by Dr. Weiss on
February 17, 2006 showed bilateral carpal tunnel syndrome and a suggestion of left brachial
plexus injury, but that appellant’s examination was not consistent with a left brachial plexus
injury.3
In a March 31, 2006 report, Dr. Lotman stated that March 27, 2006 magnetic resonance
imaging (MRI) scan testing showed a right paramedian disc herniation at C5 with a mild central
bulge at C4.4 Dr. Lotman noted that the EMG, NCV and MRI scan testing indicated that
appellant did not have significant left-sided cervical disc disease. He stated, “The result of those
studies is there is no clear definition of why this claimant has significant left-sided upper
extremity pain.” In an accompanying April 3, 2000 work restriction form, Dr. Lotman wrote
“no” in the portion of the form concerning “light duty” which asked if there was “any reason that
this person cannot work for [eight] hours per workday.” He did not complete any other portion
of the form.
In a March 20, 2007 letter, the Office advised appellant of its proposed termination of his
compensation. The Office indicated that the opinion of Dr. Lotman showed that he could
2

Appellant’s date-of-injury job required lifting up to 80 pounds.

3

The record contains a copy of this February 17, 2006 testing.

4

The record contains a copy of this March 27, 2006 testing.

2

perform his date-of-injury job. In an April 26, 2007 decision, the Office terminated appellant’s
compensation effective April 26, 2007 on the grounds that he no longer had residuals of his
September 14, 2004 employment injury after that date. The Office noted that Dr. Lotman
diagnosed a cervical disc herniation, by MRI scan evidence, which he related back to the
September 14, 2004 work injury. The Office stated, “Your claim has been expanded to include
the additional diagnosis and you have been advised under separate cover, regarding this.
However, despite the diagnosis, Dr. Lotman opined you were capable of performed
regular[-]duty work without restrictions.”
Appellant requested reconsideration of his claim and submitted numerous medical notes,
mostly dated in June and July 2007. In a July 24, 2007 decision, the Office denied appellant’s
request for reconsideration without reviewing the merits of his claim.
LEGAL PRECEDENT -- ISSUE 1
Under the Federal Employees’ Compensation Act,5 once the Office has accepted a claim
it has the burden of justifying termination or modification of compensation benefits.6 The Office
may not terminate compensation without establishing that the disability ceased or that it was no
longer related to the employment.7 The Office’s burden of proof includes the necessity of
furnishing rationalized medical opinion evidence based on a proper factual and medical
background.8
ANALYSIS -- ISSUE 1
The Office accepted that on September 14, 2004 appellant sustained a left shoulder strain
when he lifted a large duffel bag from the ground and then turned and threw it onto a conveyer
belt. It paid appellant compensation for periods of disability.9 The Office terminated appellant’s
compensation effective April 26, 2007 on the grounds that he no longer had residuals of his
September 14, 2004 employment injury after that date. It relied on the opinion of Dr. Lotman, a
Board-certified orthopedic surgeon, who served as an Office referral physician, in justifying
termination.
The Board finds that the Office did not present adequate medical evidence to justify its
termination of appellant’s compensation effective. The Office relied on a work restrictions form
completed by Dr. Lotman and interpreted this form to provide an opinion that appellant could
return to his date-of-injury job. However, such an interpretation is unwarranted. Dr. Lotman
wrote “no” in the portion of the form concerning “light duty” which asked if there was “any
reason that this person cannot work for [eight] hours per workday.” He did not complete any
5

5 U.S.C. §§ 8101-8193.

6

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

7

Id.

8

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

9

It also appears that the Office accepted that appellant sustained a C5 disc herniation on September 14, 2004.

3

other portion of the form. At best, the form could be interpreted to provide an opinion that
appellant could perform eight hours of light-duty work without specifying the type of work that
could be performed. It should be noted that, in a January 6, 2006 report, Dr. Lotman indicated
that appellant could not return to his date-of-injury job but could perform limited-duty work.
Dr. Lotman did not provide any clear, well-rationalized opinion that appellant no longer
had residuals of his September 14, 2004 employment injury. He did not explain how the
employment injury had resolved and, in fact, his reports suggested that it had not. In his
March 31, 2006 report, Dr. Lotman seemed uncertain why appellant continued to have symptoms
on his left side, i.e., the side where his employment injury occurred. He indicated that the EMG,
NCV and MRI scan testing indicated that appellant did not have significant left-sided cervical
disc disease. Dr. Lotman stated, “The result of those studies is there is no clear definition of why
this claimant has significant left-sided upper extremity pain.” Another reason that the reports of
Dr. Lotman do not support termination of appellant’s compensation, is that they contain an
opinion that he sustained a cervical herniation on September 14, 2004, which remained
symptomatic. The Office noted in its termination decision that it was expanding appellant’s
claim for a C5 herniation based on Dr. Lotman’s reports.
For these reasons, the Office did not meet its burden of proof to terminate appellant’s
compensation effective April 26, 2007.10
CONCLUSION
The Board finds that the Office did not meet its burden of proof to terminate appellant’s
compensation effective April 26, 2007 on the grounds that he no longer had residuals of his
September 14, 2004 employment injury after that date.

10

Given the Board’s findings on the merit issue of the present case, it is not necessary for it to consider the
nonmerit issue.

4

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
April 26, 2007 decision is reversed.
Issued: June 16, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
DEPARTMENT OF THE ARMY,
DIRECTORATE OF LOGISTICS,
Camp Ripley, MN, Employer
__________________________________________

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Appearances:
Marshall H. Tanick, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-196
Issued: June 17, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On November 5, 2013 appellant, through his attorney, filed a timely appeal from an
October 21, 2013 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 found a $1,194.29 overpayment of
compensation for the period July 29 to September 21, 2013 as appellant had been compensated at
an incorrect rate; (2) whether OWCP properly found appellant at fault in creation of the
overpayment, thereby precluding waiver of recovery of the overpayment; and (3) whether
OWCP properly directed recovery of the overpayment by deducting $1,194.29 from appellant’s
December 14, 2013 compensation payment.

1

5 U.S.C. § 8101 et seq.

On appeal, appellant acknowledges that he was overpaid in August, September and
October 2013 and does not contest the amount. He attributes the August 2013 overpayment to
clerical error and OWCP’s failure to correct the overpayment in September and October 2013 to
the federal furloughs that occurred during that time. Appellant submitted several statements
reviewing the circumstances of a third-party settlement in his case and the resulting offset against
his compensation. He contends that repaying the overpayment would cause financial hardship.
FACTUAL HISTORY
OWCP accepted that on January 9, 2009 appellant, then a 50-year-old food service
program specialist in dual status employment with the National Guard, sustained a cervical strain
in an occupational motor vehicle accident. The National Guard released him on April 27, 2010
as he no longer met the physical requirements for deployment. Appellant retired from the
employing establishment effective February 26, 2011 as he was no longer in the National Guard
as was required by his dual status position.
Appellant received a third-party settlement related to the January 9, 2009 motor vehicle
accident, resulting in a $34,026.61 credit against his future benefits. The credit was exhausted
on September 14, 2011. OWCP paid wage-loss compensation for his federal service beginning
on September 15, 2011.
On January 10, 2012 appellant began full-time private-sector employment with a firearms
company, earning $400.00 a week. On April 24, 2012 OWCP reduced his compensation to
reflect his actual earnings. Appellant signed a Form EN-1049 on June 28, 2012, acknowledging
his obligation to report all earnings and employment to OWCP and that failure to do so could
result in an overpayment of compensation. He was also advised to return any incorrect payments
to OWCP.
Appellant received pay increases on April 22 and July 29, 2013. OWCP corrected his
pay rate effective September 22, 2013.
By notice dated September 13, 2013, OWCP advised appellant of its preliminary
determination of an overpayment of compensation for the period July 29 to September 21, 2013
of $1,194.29 as he was compensated at an incorrect rate. It found that, based on the current pay
rate for his date-of-injury job of $1,346.33 a week and the revised actual earnings of $684.40 a
week, he was entitled to $3,906.96 in compensation from July 29 to September 21, 2013. As
appellant received $5,101.25 in compensation for that period, the difference of $1,194.29
constituted an overpayment. OWCP found him at fault in creation of the overpayment as
“[appellant] failed to provide information in a timely manner which he knew or should have
known to be material.” It directed appellant to complete an attached overpayment recovery
questionnaire (Form OWCP-20) to provide information on his income, assets and expenses.
Appellant did not complete the form or otherwise submit financial information.
By decision dated October 21, 2013, OWCP finalized the fact and amount of the
preliminary overpayment determination and the finding of fault. It directed recovery of the
overpayment by deducting $1,194.29 from appellant’s December 14, 2013 compensation

2

payment. OWCP noted that he did not respond to its request for financial information on which
to base a repayment plan.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA2 provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.3 Section 8129(a) of FECA provides, in pertinent part, that 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.”4
ANALYSIS -- ISSUE 1
The record establishes that appellant received compensation under FECA beginning on
September 15, 2011. As of July 29, 2013, appellant was employed in the private sector with
actual wages of $17.11 an hour. However, for the period July 29 to September 21, 2013, he
received compensation based on private-sector earnings of $12.00 an hour, a previous pay rate.
OWCP calculated that appellant received $5,101.25 in compensation from July 29 to
September 21, 2013 but was only entitled to $3,906.96, resulting in an overpayment of
$1,194.29. The Board finds that OWCP’s calculations are mathematically correct.
The Board notes that on appeal, appellant does not contest the fact or amount of the
overpayment as determined by OWCP. Appellant acknowledged that he was overpaid for the
period at issue. The Board will therefore affirm OWCP’s October 21, 2013 finding of
overpayment.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA5 provides that, where an overpayment of compensation has
been made because of an error of fact or law, adjustments shall be made by decreasing later
payments to which an individual is entitled.6 An individual who is found at fault in either
accepting or creating an overpayment is not eligible for a waiver of recovery of overpayment.7
A benefits recipient will be at fault if the individual: (1) made an incorrect statement as to a
material fact which he or she knew or should have known to be incorrect; (2) failed to provide
information which he or she knew or should have known to be material; or (3) accepted a

2

5 U.S.C. §§ 8101-8193.

3

Id. at § 8102(a).

4

Id. at § 8129(a).

5

Id.

6

Id.

7

5 U.S.C. § 8129(b); 20 C.F.R. §§ 10.423(a) and 10.434.

3

payment which he or she knew or should have known to be incorrect.8 No waiver of an
overpayment is possible if the claimant is at fault in creating the overpayment.9
With respect to whether an individual is without fault, section 10.433(b) of OWCP’s
regulations provide that whether or not OWCP determines that an individual was at fault with
respect to creation of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those circumstances
and the individual’s capacity to realize that he or she is being overpaid.10
Section 10.430(a) of OWCP’s regulations advise that OWCP includes on each periodic
check a clear indication of the period for which payment is being made. A form is sent to the
recipient with each supplemental check which states the period for which payment is being
made. Section 10.430(b) notes that, by these means, OWCP puts the recipient on notice that a
payment was made and the amount of the payment.11
ANALYSIS -- ISSUE 2
OWCP applied the second standard in this case, finding that appellant failed to provide
information which he knew or should have known to be material. Appellant accepted a
compensation payment for the period July 29 to September 21, 2013 based on actual earnings of
$480.00 a week, whereas he earned $684.40 a week during this period.
On June 28, 2012 appellant signed a certification acknowledging his obligation to report
all earnings and employment to OWCP and that failure to do so could result in an overpayment
of compensation. This establishes that he should have known that he was to report changes in
earnings information to OWCP. As appellant did not return the payment as instructed, OWCP
properly found him at fault in creation of the overpayment. Recovery of the $1,194.29
overpayment may not be waived because he was at fault under the second standard as set forth
above.
On appeal, appellant attributes the overpayment to clerical error and federal furloughs.
As stated above, the overpayment occurred because he failed to promptly report his increase in
earnings. Appellant also submitted several statements reviewing the circumstances of the thirdparty settlement and resulting offset against his compensation. These documents are not relevant
to the overpayment issue on appeal.
LEGAL PRECEDENT -- ISSUE 3
When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as soon as the
8

Id. at § 10.433(a).

9

Gregg B. Manston, 45 ECAB 344 (1994).

10

20 C.F.R. § 10.433(b).

11

R.W., Docket No. 13-1285 (issued November 13, 2013); Id. at § 10.430.

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error is discovered or his or her attention is called to 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.12
ANALYSIS -- ISSUE 3
In its October 21, 2013 decision, OWCP found that appellant failed to respond to its
request for financial information on which to base a repayment plan. Appellant did not provide
any information about his household income, assets or expenses to enable OWCP to determine a
repayment plan that would minimize any financial hardship. OWCP advised that it would
deduct $1,194.29 from his compensation check effective December 14, 2013. Under these
circumstances, the Board will affirm OWCP’s October 21, 2013 decision on the issue on the rate
of recovery.
On appeal, appellant contends that repaying the overpayment would cause financial
hardship. As stated above, he did not submit any financial information that would have assisted
OWCP in formulating a repayment plan.
CONCLUSION
The Board finds that OWCP properly found a $1,194.29 overpayment of compensation
for the period July 29 to September 21, 2013. The Board further finds that OWCP properly
found appellant at fault in creation of the overpayment, thereby precluding waiver of recovery.
The Board further finds that OWCP properly directed recovery of the overpayment by deducting
$1,194.29 from his December 14, 2013 compensation payment.

12

Id. at § 10.441(a) (2003).

5

ORDER
IT IS HEREBY ORDERED THAT the October 21, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 17, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, FOOD & DRUG
ADMINISTRATION, Silver Spring, MD,
Employer
__________________________________________

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

Docket No. 11-2072
Issued: August 28, 2012

Case Submitted on the Record

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

JURISDICTION
On September 28, 2011 appellant filed a timely appeal from an August 8, 2011 decision
of the Office of Workers’ Compensation Programs (OWCP) which denied his reconsideration
request on the grounds that it was untimely filed and failed to establish clear evidence of error.
Because more than one year elapsed from the most recent merit decision of April 15, 2010 to the
filing of this appeal, the Board lacks jurisdiction to review the merits of the claim pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and did not demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
Appellant, a 51-year-old consumer safety officer injured his neck on March 15, 2007
when the bus on which he was a passenger abruptly applied the brakes, causing him to jolt
forward. He filed a claim for benefits on March 22, 2007, which OWCP accepted for a neck
sprain, degeneration of a cervical intervertebral disc and cervical spondylosis with myelopathy.
OWCP paid compensation for temporary total disability.
Appellant came under the treatment of Dr. Robert Sean Jackson, a Board-certified
orthopedic surgeon. He underwent diagnostic testing on February 5, 2009 that showed a
moderate level of degenerative disc disease at C6-7, unchanged, with a modest central stenosis at
multiple levels. As previously seen a disc protrusion at C6-7 was stated as having resolved and
significantly declined in size. On examination, Dr. Jackson noted neck and bilateral arm
symptomatology without clinical signs of myelopathy or significant central spinal stenosis. He
recommended a course of physical therapy and a functional capacity evaluation. On July 9, 2009
Dr. Jackson noted limited neck range of motion with diminished reflexes, full upper extremity
motor strength and diminished sensation in the ulnar distribution on the left and the medial
distribution on the right. He commented that appellant’s functional capacity evaluation was
determined invalid due to inconsistencies during testing. Dr. Jackson found appellant at
maximum medical improvement as he was not interested in cervical surgery.
Appellant underwent a subsequent functional capacity evaluation on September 15, 2009
that was reported by the assessment specialist as conditionally valid. He was found capable of
meeting medium job demands according to the Dictionary of Occupational Titles. On
September 21, 2009 Dr. Jackson recommended restrictions at the medium work category with no
bending or stooping, no overhead work, no lifting greater than 10 pounds, frequently no greater
than 25 pounds and occasionally up to 50 pounds. On October 6, 2009 he advised that appellant
could return to his date-of-injury job as a consumer safety officer.
On February 26, 2010 OWCP issued a notice of proposed termination of wage-loss
compensation advising appellant that Dr. Jackson’s opinion as to his work capacity supported the
termination of compensation benefits. Appellant was notified that if he disagreed with the
proposed termination of compensation benefits, he could submit additional evidence within 30
days.
By letter dated March 18, 2010, David Ben Mandelbaum, appellant’s attorney, advised
OWCP that he was representing appellant. He contended that Dr. Jackson must not have
reviewed appellant’s entire job description and stated: “Please consider this to be a request that
your agency reconsider its determination” and to ask Dr. Jackson to further address appellant’s
work limitations as a consumer safety officer.
In an April 15, 2010 decision, OWCP terminated appellant’s wage-loss compensation
benefits. It found that the weight of medical opinion was represented by Dr. Jackson. Further,

2

OWCP advised appellant that it had not received any authorization for his representation by
Mr. Mandelbaum.2
In a letter dated April 20, 2010, received by OWCP on April 22, 2010, appellant provided
OWCP with written authorization of his representation by Mr. Mandelbaum. He contended that
Dr. Jackson had erred in authorizing his full return to work. Appellant noted his receipt of the
termination decision and stated that counsel would provide documents necessary to act on his
behalf.
In an April 23, 2010 letter, OWCP notified counsel that he was recognized as appellant’s
representative of record. It provided him a copy of the April 15, 2010 decision to handle in such
capacity.
A memorandum of telephone call dated July 15, 2011 stated that counsel contacted
OWCP to check the status of a reconsideration request related to the April 15, 2010 decision. It
verified that no request for reconsideration appeared in the file. Counsel stated that he had
submitted a request on or about April 26, 2010. OWCP advised him to resubmit the request with
verification, such as a certified mail receipt, that it was sent at that time.
In a July 15, 2011 letter to OWCP, counsel submitted a copy of an appeal request form
signed by appellant on April 23, 2010 together with a copy of the consumer safety officer job
requirements. This letter was received by OWCP on July 18, 2011. On the form, appellant
marked an “x” for reconsideration. The copy of the position description was apparently faxed by
him to counsel on May 4, 2011 at 10:39 p.m.
By decision dated August 8, 2011, OWCP denied appellant’s request for reconsideration
without a merit review. It found the request was untimely filed within one year of the April 15,
2010 decision and that the evidence was not sufficient to establish clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of FECA3 does not entitle an employee to a review of OWCP’s decision
as a matter of right.4 This section, vesting OWCP with discretionary authority to determine
whether it will review an award for or against compensation, provides:
“The Secretary of Labor may review an award for or against payment of
compensation at anytime on his own motion or on application. The Secretary, in
accordance with the facts found on review may: (1) end or increase the
compensation awarded; or (2) award compensation previously refused or
discontinued.”
2

In an April 16, 2010 letter, OWCP advised counsel that it could not communicate with him concerning
appellant’s file absent written authorization of representation.
3

5 U.S.C. § 8128(a).

4

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989); Gregory Griffin, 41 ECAB
186 (1989), petition for recon. denied, 41 ECAB 458 (1990).

3

OWCP, through its regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a).5 As one such limitation, it has stated that it
will not review a decision denying or terminating a benefit unless the application for review is
filed within one year of the date of that decision.6 The Board has found that the imposition of
this one-year time limitation does not constitute an abuse of the discretionary authority granted
by OWCP under 5 U.S.C. § 8128(a).7
In those cases where a request for reconsideration is not timely filed, the Board had held
however that OWCP must nevertheless undertake a limited review of the case to determine
whether there is clear evidence of error pursuant to the untimely request.8 OWCP’s procedures
state that it will reopen an appellant’s case for merit review, notwithstanding the one-year filing
limitation set forth in 20 C.F.R. § 10.607(b), if his application for review shows “clear evidence
of error” on the part of OWCP.9
To establish clear evidence of error, appellant must submit evidence relevant to the issue
which was decided by OWCP.10 The evidence must be positive, precise and explicit and must be
manifested on its face that it committed an error.11 Evidence which does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to establish clear
evidence of error.12 It is not enough merely to show that the evidence could be construed so as to
produce a contrary conclusion.13 This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and
whether the new evidence demonstrates clear error on the part of OWCP.14 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to shift the weight of the evidence in favor of the claimant and raise a substantial
question as to the correctness of OWCP’s decision.15 The Board makes an independent
5

Although it is a matter of discretion on the part of OWCP whether to review an award for or against payment of
compensation, a claimant may obtain review of the merits of a claim by: (1) showing that OWCP erroneously
applied or interpreted a point of law; (2) advances a relevant legal argument not previously considered by OWCP; or
(3) constituting relevant and pertinent new evidence not previously considered by OWCP. See 20 C.F.R.
§ 10.606(b).
6

20 C.F.R. § 10.607(b).

7

See cases cited supra note 4.

8

Rex L. Weaver, 44 ECAB 535 (1993).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b) (May 1991).

10

See Dean D. Beets, 43 ECAB 1153 (1992).

11

See Leona N. Travis, 43 ECAB 227 (1991).

12

See Jesus D. Sanchez, supra note 4.

13

See Leona N. Travis, supra note 11.

14

See Nelson T. Thompson, 43 ECAB 919 (1992).

15

Leon D. Faidley, Jr., supra note 4.

4

determination of whether an appellant has submitted clear evidence of error on the part of
OWCP such that it abused its discretion in denying merit review in the face of such evidence.16
ANALYSIS
OWCP properly determined that appellant failed to file a timely application for review.
It issued the most recent merit decision in this case on April 15, 2010. OWCP received
appellant’s request for reconsideration on July 18, 2011. The evidence establishes that the
request was untimely as it was outside the one-year time limit.
Counsel wrote to OWCP on March 18, 2010 to advise that he had been retained by
appellant; however, he did not provide any written authorization from appellant with his letter.17
Further, the letter cannot be found to constitute a request for reconsideration as it was submitted
prior to issuance of the final adverse decision of April 15, 2010.18
Appellant wrote to OWCP on April 20, 2010 providing written authorization that counsel
could represent him in his claim. He advised that counsel would provide additional documents
to resolve his case. While he noted receipt of the termination of benefits letter, appellant did not
request reconsideration at that time or submit the notice of appeal form attached to the April 15,
2010 decision.19
Counsel next contacted OWCP by telephone on July 15, 2011 to inquire regarding the
status of a reconsideration request, which he stated he mailed on or about April 26, 2010. He
was advised that OWCP had not received any request for reconsideration regarding the April 15,
2010 decision. Counsel was advised to submit a copy of the request for reconsideration, together
with any verification or proof of mailing.
On July 18, 2011 OWCP received counsel’s July 15, 2011 letter requesting
reconsideration of the April 15, 2010 decision. Counsel stated that he was enclosing a copy of
an appeal request form of April 23, 2010 previously sent to OWCP. He also enclosed medical
evidence and a copy of the physical requirements of the job.
Under the mailbox rule, it is presumed, in the absence of evidence to the contrary, that a
letter properly address and mailed in the course of business is presumed to have arrived at the
mailing address in due course.20 This is known as the mailbox rule and the Board has held that
16

Gregory Griffin, supra note 4.

17

The implementing federal regulations and Board case precedent establish that an authorized representative may
request reconsideration. See Joseph Costigan, 49 ECAB 656 (1998); David M. Ibarra, 48 ECAB (1996).
18

See 20 C.F.R. § 10.605(a). The February 26, 2010 pretermination notice letter was informational in nature and
does not constitute a final adverse decision of OWCP.
19

While no special form is required, a reconsideration request must be made in writing, identify the decision and
the specific issues for which reconsideration is being requested, and be accompanied by relevant and pertinent new
evidence or argument not considered previously. See Gladys Mercado, 52 ECAB 255 (2001).
20

Kenneth E. Harris, 54 ECAB 502 (2003).

5

the presumption of receipt must apply to claimants and OWCP alike, provided the conditions
which give rise to the presumption remain the same.21 This requires evidence of a properly
addressed letter together with evidence of proper mailing.
Although counsel was advised that he could submit evidence of mailing a timely request
for reconsideration, no evidence of prior mailing was received. The July 15, 2011 letter enclosed
the appeal request form signed by appellant on April 23, 2010, but counsel did not submit any
evidence, such as a certified mail receipt or other evidence, to establish proper mailing of this
form to OWCP in the ordinary course of business on or about that date. To the contrary, the
record on appeal does not document any response by counsel to OWCP’s April 23, 2010 letter
recognizing him as representative in this case until submission of the July 15, 2011 letter,
received on July 18, 2011. For this reason, the Board finds that appellant’s request was untimely
filed.
The Board also finds that appellant’s July 18, 2011 untimely request for reconsideration
failed to establish clear evidence of error. In order to establish clear evidence of error, appellant
must submit evidence relevant to the issue which was decided by OWCP. He submitted a copy
of the position description for a consumer safety officer, which does not constitute medical
evidence relevant to the issue of his capacity to perform such duties.22 Counsel noted that he was
enclosing a medical report dated March 5, 2010 from Dr. Christopher C. Meredith,
Board-certified in neurosurgery, but the record does not document receipt of this report with the
request for reconsideration.23
The Board finds that appellant did not submit sufficient evidence with his request for
reconsideration to substantiate clear error by OWCP in the termination of his wage-loss benefits.
CONCLUSION
The Board finds that appellant’s reconsideration request was untimely filed and failed to
establish clear evidence of error.

21

Larry L. Hill, 42 ECAB 596 (1991).

22

Whether a particular employment injury causes disability for employment and the duration of disability are
medical questions to be resolved by probative medical opinion. See Laurie S. Swanson, 53 ECAB 517 (2002);
Maxine J. Sanders, 46 ECAB 835 (1995).
23

The record reflects the report of Dr. Meredith was received by OWCP following issuance of the August 8, 2011
decision. Therefore, it constitutes new evidence which the Board may not review for the first time on appeal. See
20 C.F.R. §501.2(c)(1).

6

ORDER
IT IS HEREBY ORDERED THAT the August 8, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 28, 2012
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.C., Appellant
and
FEDERAL JUDICIARY, U.S. DISTRICT
COURT FOR THE CENTRAL DISTRICT OF
CALIFORNIA, Los Angeles, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 12-25
Issued: May 11, 2012

Case Submitted on the Record

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

JURISDICTION
On October 7, 2011 appellant filed an appeal from a September 2, 2011 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 her burden of proof to establish that a January 21,
2009 wage-earning capacity decision should be modified.
On appeal appellant asserts that the January 21, 2009 wage-earning capacity was
erroneous because she was physically incapable of performing the selected position and that a
conflict in medical evidence was created between her attending physician and an OWCP referral

1

5 U.S.C. §§ 8101-8193.

physician. She cited to Board cases I.J., 59 ECAB 408 (2008) and S.H., Docket No. 11-180
(issued September 9, 2011) in support of her contention.
FACTUAL HISTORY
This case has previously been before the Board. In a May 2, 2011 decision, the Board
affirmed an OWCP decision that found appellant did not meet her burden of proof to modify a
January 21, 2009 decision in which OWCP reduced her monetary compensation based on her
capacity to earn wages as an information clerk.2 The law and the facts of the previous Board
decision are incorporated herein by reference.3
On June 1, 2011 appellant, through her attorney, requested modification of the
January 21, 2009 wage-earning capacity determination. She submitted a May 18, 2011 report
from Dr. Jacob E. Tauber, an attending Board-certified orthopedic surgeon, who noted that on
physical examination appellant had markedly positive Tinel’s and Phalen’s signs, some
decreased sensation to pinprick in her median nerve distribution and decreased grip strength
bilaterally. Dr. Tauber diagnosed carpal tunnel syndrome and noted that he had previously
indicated that she could lift up to 10 pounds occasionally but that the proposed job of
information clerk would require her to do repetitive motions in the form of computer entry. He
added that, if the position did not require computer entry, it could be suitable, but no job that
required repetitive motion duties such as repetitive typing would be suitable. Dr. Tauber further
opined that a conflict in medical evidence existed between him and Dr. Ha’Eri, an OWCP
referral physician.
In a merit decision dated September 2, 2011, OWCP denied modification of the
January 21, 2009 wage-earning capacity determination.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.4 OWCP’s procedure manual provides that, “[i]f a
formal loss of wage-earning capacity decision has been issued, the rating should be left in place
unless the claimant requests resumption of compensation for total wage loss. In this instance the
2

Docket No. 10-1596 (issued May 2, 2011).

3

On March 19, 1991 OWCP accepted that appellant, a court reporter, sustained work-related bilateral carpal
tunnel syndrome. Appellant was placed on the periodic compensation rolls. In 2008 OWCP referred her to Dr. G.B.
Ha’Eri, a Board-certified orthopedic surgeon, who provided a March 24, 2008 report. OWCP thereafter referred
appellant for vocational rehabilitation for assistance in returning her to work and the vocational rehabilitation
counselor identified the position of information clerk as within her restrictions, qualifications and available in the
local labor market. Appellant underwent training to update her skills and completed the training on
October 24, 2008. She did not seek employment and on January 21, 2009, OWCP reduced her monetary
compensation, based on her capacity to earn wages in the constructed position of an information clerk.
4

Katherine T. Kreger, 55 ECAB 633 (2004).

2

[claims examiner] will need to evaluate the request according to the customary criteria for
modifying a formal loss of wage-earning capacity.”5 Once the wage-earning capacity of an
injured employee is determined, a modification of such determination is not warranted unless
there is a material change in the nature and extent of the injury-related condition, the employee
has been retrained or otherwise vocationally rehabilitated, or the original determination was, in
fact, erroneous.6 The burden of proof is on the party attempting to show a modification of the
wage-earning capacity determination.7
In Chapter 2.814.11 of OWCP’s procedure manual contains provisions regarding the
modification of a formal loss of wage-earning capacity. The relevant part provides that a formal
loss of wage-earning capacity will be modified when: (1) the original rating was in error; (2) the
claimant’s medical condition has changed; or (3) the claimant has been vocationally
rehabilitated. OWCP procedures further provide that the party seeking modification of a formal
loss of wage-earning capacity decision has the burden to prove that one of these criteria has been
met. If OWCP is seeking modification, it must establish that the original rating was in error, that
the injury-related condition has improved or that the claimant has been vocationally
rehabilitated.8 It is not precluded from adjudicating a limited period of employment-related
disability when a formal wage-earning capacity determination has been issued.9
ANALYSIS
Appellant asserts that the January 21, 2009 wage-earning capacity was erroneous because
she was medically incapable of performing the duties of the selected position. The Board finds
that appellant did not submit sufficient evidence to establish error in OWCP’s January 21, 2009
wage-earning capacity determination. In the prior appeal, the Board reviewed the medical
evidence submitted by appellant prior to the January 29, 2010 OWCP decision, including reports
dated April 14 and August 10, 2009 from Dr. Tauber, an attending orthopedic surgeon. With her
June 1, 2011 request for modification, appellant submitted a May 18, 2011 report from
Dr. Tauber, who provided findings on physical examination or markedly positive Tinel’s and
Phalen’s signs, some decreased sensation to pinprick in her median nerve distribution and
decreased grip strength bilaterally. Dr. Tauber diagnosed carpal tunnel syndrome. He noted his
prior recommendation that appellant lift up to 10 pounds occasionally but opined that the
proposed job of information clerk would require her to do repetitive motions in the form of
computer entry. Dr. Tauber noted that, if the position did not require computer entry, it could be
suitable, but no job that required repetitive motion duties such as repetitive typing would be
suitable. He stated that a conflict in medical evidence existed between him and Dr. Ha’Eri, an
OWCP referral physician.
5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995).
6

Stanley B. Plotkin, 51 ECAB 700 (2000).

7

Id.

8

See Federal (FECA) Procedure Manual, supra note 5 at Chapter 2.814.11 (June 1996).

9

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

3

The selected position of information clerk was classified as sedentary. It required no
fingering and only occasional reaching and handling of no more than 10 pounds.10 Thus,
Dr. Tauber’s May 18, 2011 report does not provide support for appellant’s contention that the
information clerk position was outside her physical restrictions. He allowed that there was a
conflict in medical opinion with that of Dr. Ha’Eri, an OWCP referral orthopedic surgeon. In a
March 24, 2008 report, Dr. Ha’Eri provided permanent restrictions of no repetitive use of both
wrists, no lifting over 10 pounds, and no pulling/pushing over 20 pounds, with each activity
performed no more than one hour per day, restrictions within the requirements of the information
clerk position.
The cases referenced by appellant can be distinguished from the facts in the instant case.
Appellant cited I.J. to support that a conflict in medical opinion had been created.11 As noted,
while the restrictions provided by Dr. Ha’Eri and Dr. Tauber vary somewhat, the merit issue in
this case is whether the January 21, 2009 wage-earning capacity decision should be modified.
The restrictions provided by both physicians were within the physical requirements of the
selected position of information clerk. In S.H.,12 the duties of the selected position did not
conform with the restrictions provided by an OWCP referral physician. This is factually
distinguishable from the medical evidence from Dr. Ha’Eri on this case.
There is no evidence of record that appellant was retrained or otherwise vocationally
rehabilitated. Dr. Tauber’s May 18, 2011 report is insufficient to show that there was a material
change in the nature and extent of the injury-related condition such that the January 21, 2009
decision should be modified and he reiterated physical restrictions he had reported previously in
his August 17, 2009 report.
As the medical evidence is insufficient to establish that the January 21, 2009 wageearning capacity decision should be modified,13 OWCP properly denied modification of the
January 21, 2009 wage-earning capacity determination.14
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.

10

The Dictionary of Occupational Titles job description for information clerk was as follows: Answers inquiries
from persons entering establishment. Provides information regarding activities conducted at establishment, location
of departments offices and employees within organization. Informs customer of location of store merchandise in
retail establishment. Provides information concerning services, such as laundry and valet services in hotel.
Receives and answers requests for information from company officials and employees. May call employees or
officials to information desk to answer inquiries. May keep record of questions asked. The strength level was listed
as sedentary, with no climbing, balancing, stooping, kneeling, crouching, crawling or fingering and occasional
reaching and handling of no more than 10 pounds.
11

I.J., 59 ECAB 408 (2008).

12

S.H., Docket No. 11-180 (issued September 9, 2011).

13

See Darletha Coleman, 55 ECAB 143 (2003).

14

T.M., Docket No. 08-975 (issued February 6, 2009).

4

CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that a
January 21, 2009 wage-earning capacity decision that reduced her compensation should be
modified.
ORDER
IT IS HEREBY ORDERED THAT the September 2, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 11, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5