United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, Marianna, FL,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 17-1696
Issued: February 15, 2019

Case Submitted on the Record

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

On August 2, 2017 appellant filed a timely appeal from a July 12, 2017 merit decision of
the Office of Workers’ Compensation Programs (OWCP). The Board assigned the appeal Docket
No. 17-1696.1
On March 19, 2015 appellant, then a 56-year-old dental officer (dentist), filed a traumatic
injury claim (Form CA-1) alleging that she injured her right knee and left shoulder due to a workrelated fall on March 16, 2015.2 OWCP initially accepted the claim for left shoulder sprain, and
subsequently expanded the acceptance to include left shoulder bicipital tendinitis and left shoulder
bursitis. It also authorized two left shoulder surgical procedures, which were performed on
July 27, 2016 and March 1, 2017. Following her latest surgery, appellant was released to return
1

The Board notes that following the July 12, 2017 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for
the first time on appeal. Id.
2
Appellant was responding to a medical emergency when she lost control of the stretcher she was handling and fell
to her hands and knees, landing on concrete.

to work in a limited-duty capacity effective April 2, 2017. However, the employing establishment
was unable to accommodate appellant’s work restrictions at the time. OWCP paid wage-loss
compensation for temporary total disability beginning April 29, 2017, and placed appellant on the
periodic compensation rolls.
On May 25, 2017 the employing establishment offered appellant a full-time, limited-duty
assignment as a dental officer, which she accepted.3 Her scheduled work hours were 7:30 a.m. to
4:00 p.m., Monday through Friday. On May 26, 2017 at approximately 2:45 p.m., the
rehabilitation field nurse assigned to appellant’s claim contacted OWCP (CA-110 Notes) to advise
that the employing establishment confirmed appellant had returned to work in a full-time, limitedduty capacity.
On May 27, 2017 OWCP disbursed payment in the amount of $7,282.38 (net) for the 28day period April 30 through May 27, 2017.
In a June 1, 2017 letter, OWCP informed appellant that it had preliminarily determined that
she received an overpayment of compensation in the amount of $520.17 for the period May 26 and
27, 2017. It explained that appellant received compensation benefits after returning to work on
May 26, 2017.
In a June 15, 2017 fax, appellant explained that on “[May 26, 2017]” at approximately 1:30
p.m., she received a telephone notification regarding her limited light-duty assignment. She
indicated she was not home at the time. Appellant further indicated that within one hour, she
reviewed the document, signed it, and returned the e-mail with notification and documentation that
she had a physical therapy appointment scheduled for May 27, 2017 at 10:00 a.m. She also
indicated that the employing establishment was located 90 minutes away from her home, so she
did not arrive at work until 12:30 p.m. Appellant requested that OWCP recalculate the balance
due based on “3.5 hours.” She provided a physical therapy appointment log that indicated she
attended therapy on Friday, May 26, 2017 at 10:00 a.m. Appellant’s next reported physical therapy
appointment was on Wednesday, May 31, 2017.
By decision dated July 12, 2017, OWCP finalized its determination that appellant received
an overpayment of compensation in the amount of $520.17 for the period May 26 to 27, 2017, and
that she was without fault in the creation of the overpayment. It also denied waiver of recovery of
the overpayment.
The Board finds that the case is not in posture for decision. While appellant may not
receive wage-loss compensation for temporary total disability and actual earnings for the same
period,4 the current record does not clearly establish the date and time appellant resumed work.
OWCP relied on secondhand information from its field nurse and did not obtain time and

3

Appellant signed the written offer acknowledging her acceptance at 2:08 p.m. on May 25, 2017.

4

See R.W., Docket No. 13-1285 (issued November 13, 2013); Danny E. Haley, 56 ECAB 393, 400 (2005); see also
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Identifying and Calculating an Overpayment, Chapter
6.200.1a (September 2018).

2

attendance information from the employing establishment to confirm the precise date and time
appellant resumed work.5
Accordingly the Board shall set aside the July 12, 2017 overpayment decision and remand
this case to OWCP. On remand OWCP should advise the employing establishment of its
responsibility for submitting all relevant and probative factual evidence in its possession, including
appellant’s time and attendance and payroll information.6 Following this and such further
development as deemed necessary, it shall issue a new preliminary notice of overpayment, if
required.
IT IS HEREBY ORDERED THAT the July 12, 2017 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded for further action consistent with
this order.
Issued: February 15, 2019
Washington, DC

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

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

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

5

The employing establishment is responsible for submitting to OWCP all relevant and probative factual and
medical evidence in its possession, or which it may acquire through investigation or other means. Such evidence may
be submitted at any time. 20 C.F.R. § 10.118(a).
6

See T.L., Docket No. 17-1391 (issued July 3, 2018).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL AIR MARSHAL SERVICE,
College Park, GA, Employer
__________________________________________

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

Docket No. 20-0769
Issued: January 12, 2021

Case Submitted on the Record

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

JURISDICTION
On February 24, 2020 appellant, through counsel, filed a timely appeal from a
November 26, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish more than 21 percent
permanent impairment of the left lower extremity, for which he previously received schedule
award compensation.
FACTUAL HISTORY
On February 13, 2013 appellant, then a 33-year-old federal air marshal, filed a traumatic
injury claim (Form CA-1) alleging that on February 10, 2013 he experienced extreme pain in his
left knee while running on a treadmill in a hotel gym while in the performance of duty. OWCP
accepted the claim for tear of the medial meniscus of the left knee, current. It authorized left knee
arthroscopy with partial medial meniscectomy, which was performed on January 16, 2014 and
repeat left knee arthroscopy with partial medial meniscectomy, which was performed on April 10,
2014, and paid wage-loss compensation. The surgeries were performed by Dr. Champ L. Baker,
III, an attending Board-certified orthopedic surgeon. On May 19, 2014 appellant returned to fulltime modified-duty work with restrictions
OWCP received a June 3, 2014 visit status report in which Dr. Baker noted examination
findings and provided assessments of a current tear of the medial cartilage and/or meniscus tear of
the left knee and status post left knee arthroscopy and partial medial meniscectomy. Dr. Baker
opined that appellant had two percent permanent impairment of the left knee due to his partial
medial meniscectomy. He determined that he reached maximum medical improvement (MMI)
and advised that he could return to full-duty work with no restrictions.3
On June 10, 2014 OWCP routed Dr. Baker’s June 3, 2014 report, a statement of accepted
facts (SOAF), and the case file to Dr. Howard P. Hogshead, a Board-certified orthopedic surgeon
serving as an OWCP district medical adviser (DMA), for an opinion on permanent impairment
under the standards of the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides).4
Dr. Hogshead, in a June 11, 2014 medical report, agreed with Dr. Baker’s two percent left
lower extremity permanent impairment rating, noting that it was consistent with the sixth edition
of the A.M.A., Guides. He also agreed that the date of MMI was June 3, 2014, the date of
Dr. Baker’s impairment evaluation.
By decision dated July 29, 2014, OWCP granted appellant a schedule award for two
percent permanent impairment of the left lower extremity. The period of the award ran for 5.76
weeks from June 3 through July 13, 2014 and was based on the June 3 and 11, 2014 impairment
ratings of Dr. Baker and the DMA, respectively.
On February 3, 2019 appellant filed a claim for an additional schedule award (Form CA-7).

3

The record indicates that appellant returned to full-duty work with no restrictions on June 4, 2014.

4

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

2

In a March 18, 2019 report, Dr. Sonny Dosanjh, a Board-certified physiatrist, noted that
appellant presented for an impairment evaluation of the left lower extremity (left knee). He also
noted a history of the accepted February 10, 2013 employment injury, a February 5, 2005
motorcycle accident, and appellant’s treatment history, and reviewed medical records.
Dr. Dosanjh noted that appellant had pain over his left knee and left foot/ankle. He also had a
normal gait and station. On physical examination of the left knee, Dr. Dosanjh reported, among
other things, no tenderness, warmth, erythema or objective synovitis and crepitus, reduced range
of motion (ROM), and pain on palpation. On examination of the left ankle, he also found no
warmth or erythema, decreased inversion, eversion, dorsiﬂexion, and plantar ﬂexion, and swelling,
tenderness, reduced ROM, and pain on palpation, severe palpatory ﬁndings, including crepitus and
joint line tenderness medial and lateral joint line, positive Talar Tilt, positive laxity, and mild
edema of the left lower extremity. Dr. Dosanjh noted that a September 11, 2013 magnetic
resonance imaging (MRI) scan of the left knee x-ray revealed a medial meniscus tear. A
December 28, 2018 left knee x-ray showed medial joint space narrowing that measured 3.4
millimeters (mm) and lateral joint space that measured 3.6 mm. Dr. Dosanjh provided assessments
of posterior horn medial meniscal tear, status post January 16, 2014 left knee arthroscopy and
partial medial meniscectomy, status post April 10, 2014 repeat left knee arthroscopy and medial
meniscectomy, primary knee joint osteoarthritis of the left knee, and status post February 15, 2005
open reduction internal ﬁxation of the left cuboid fracture and open reduction internal ﬁxation of
the left Lisfranc fracture/dislocation after the motorcycle accident. He also provided assessment
that the left foot demonstrated postsurgical changes with fusion of the mid foot. There was
complete fusion with two screws and k-wire of the cuboid with the lateral cuneiform and the
navicular bones. These bones were completely fused. There was extensive arthritis of the medial
cuneiform and the first metatarsal bones and joint space. No joint space was identiﬁed which could
be measured. There were extensive bony productive changes. The osteophytes were riding boneon-bone. The measurement for the medial cuneiform for the first metatarsal was 0.1 mm and the
first metatarsophalangeal joint was 0.5 mm. There was narrowing and sclerosis with hooking
identiﬁed. There were bony productive changes of the talonavicular and talocalcaneal joint as
well. The talonavicular joint space measured at 1.4 mm, the talocalcaneal joint space measured at
2.2 mm, and the tibiotalar joint space measured at 2.9 mm.
Referring to Table 16-3 (Knee Regional Grid) on page 509 of the sixth edition of the
A.M.A., Guides, Dr. Dosanjh utilized the diagnosis-based impairment (DBI) rating method and
noted that appellant’s left medial meniscus tear with a history of partial medial meniscectomy
constituted a class of diagnosis (CDX) of 1, thereby warranting a default value of seven percent
permanent impairment. He assigned a grade modifier for functional history (GMFH) of 1 under
Table 16-6, a grade modifier for physical examination (GMPE) of 2 under Table 16-7, and a grade
modifier for clinical studies (GMCS) of 2 under Table 16-8. Dr. Dosanjh concluded that appellant
had three percent permanent impairment. He noted that appellant’s left knee osteoarthritis with
three millimeter interval at the medial joint space represented a CDX of 1 with a default value of
seven percent under Table 16-3 (Foot and Ankle Regional Grid) on page 511. Dr. Dosanjh
assigned a GMFH of 2 under Table 16-6, a GMPE of 2 under Table 16-7, and a GMCS of 2 under
Table 16-8. He utilized the net adjustment formula (GMFH - CDX) + (GMPE - CDX) + (GMCS
– CDX) = (2 - 2) + (2 - 2) + (2 – 2) = 0, which resulted in a grade C, seven percent permanent
impairment of the left knee. Dr. Dosanjh noted that pages 497 and 529 of the A.M.A., Guides
indicated that, if there were multiple diagnoses within a specific region, then the most impairing
diagnosis would be rated. He advised that the most impairing problem in the knee was rated at
3

seven percent impairment based on arthritis. Dr. Dosanjh also utilized the DBI rating method to
find that pan-talar arthritis of the left ankle represented a CDX of three under Table 16-2 on page
505 because it was a severe problem. He found a GMFH of 2 under Table 16-6 due to an antalgic
gait, a GMPE of 3 under Table 16-7 due to loss of ROM and severe palpatory findings (including
crepitus and joint line tenderness in the medial and lateral joint line, positive Talar tilt, and positive
laxity), and a GMCS of 2 under Table 16-8 that confirmed the diagnosis of moderate pathology.
Dr. Dosanjh utilized the net adjustment formula (GMFH - CDX) + (GMPE - CDX) + (GMCS –
CDX) = (2 - 3) + (3 - 3) + (2 – 3) = -2, which resulted in a grade A, 26 percent permanent
impairment. He referred to the Combined Values Chart on pages 609 through 606, and combined
the 7 percent left knee impairment rating and the 26 percent left ankle impairment rating, which
resulted in 31 percent total permanent impairment of the left lower extremity. In an addendum to
his report, Dr. Dosanjh utilized the ROM rating method to determine impairment to the left ankle
and tested three separate times with a goniometer. He reported that active ROM showed 30
degrees, 32 degrees, and 30 degrees of plantar ﬂexion; 10 degrees, 12 degrees, and 12 degrees of
dorsiﬂexion; 15 degrees, 13 degrees, and 15 degrees of inversion; and 12 degrees, 14 degrees, and
14 degrees of eversion. Dr. Dosanjh also tested loss of passive ROM three separate times with a
goniometer which showed 33 degrees, 35 degrees, and 32 degrees of plantar ﬂexion; 12 degrees,
12 degrees, and 13 degrees of dorsiﬂexion; 15 degrees, 14 degrees, and 15 degrees of foot
inversion; and l3 degrees, 15 degrees, and 15 degrees of foot eversion. He concluded that, as the
DBI left ankle impairment rating was greater than the ROM left ankle impairment rating, the
greater impairment should be used according to the A.M.A., Guides.
In a July 22, 2019 development letter, OWCP advised appellant that the evidence
submitted, including Dr. Dosanjh’s March 18, 2019 report, was insufficient to establish his claim
for an additional schedule award. It requested that he submit a report from his treating physician,
which provided a permanent impairment rating pursuant to the sixth edition of the A.M.A., Guides.
OWCP requested that the physician independently calculate the impairment using both the DBI
and ROM methods, if allowed by the A.M.A., Guides, and identify the higher rating. It afforded
appellant 30 days to submit the required medical evidence. No additional evidence was submitted.
On August 28, 2019 OWCP routed Dr. Dosanjh’s report, a SOAF, and the case record to
Dr. Jovito Estaris, a Board-certified occupational medicine physician, serving as a DMA, for
review and a determination of permanent impairment of appellant’s left lower extremity under the
sixth edition of the A.M.A., Guides, and his date of MMI.
On September 13, 2019 Dr. Estaris utilized the findings in Dr. Dosanjh’s March 18, 2019
report. He agreed with Dr. Dosanjh’s finding that appellant had seven percent permanent
impairment of the left lower extremity due to primary left knee medial meniscus tear with knee
joint arthritis with three mm interval at the medial joint space. The DMA utilized the DBI rating
method and determined that at Table 16-3 on page 511 of the sixth edition of the A.M.A., Guides,
appellant’s left knee diagnosis represented a CDX of 1 with a default value of seven percent. He
noted that a GMFH was not used because Dr. Dosanjh’s assignment of a GMFH of 1 for
appellant’s left knee medial meniscus tear and a GMFH of 2 for his left knee arthritis were
inconsistent. The DMA further noted that a GMPE was also not applicable for the same reason as
Dr. Dosanjh reported that the left knee had no tenderness and in the next sentence he reported that
there was pain on palpation. He advised that tenderness was pain on palpation. The DMA
indicated that a GMCS was not used because x-rays of the left knee showed 3.4 mm medial joint

4

space, which was used for proper placement in the DBI grid. He did not apply the net adjustment
formula and determined that appellant had a class 1, grade C, seven percent permanent impairment
of the left lower extremity. The DMA advised that the ROM rating method was not applicable
because no ROM measurements were provided by Dr. Dosanjh. He further advised that
Dr. Dosanjh’s left foot/ankle impairment rating related to a 2005 motorcycle accident that was not
a consequence of appellant’s accepted left knee injury. The DMA related that appellant reached
MMI on March 18, 2019, the date of Dr. Dosanjh’s impairment evaluation. As appellant
previously received a schedule award for two percent permanent impairment of the left lower
extremity, he opined that appellant was entitled to an additional schedule award for five percent
permanent impairment of the left lower extremity.
On October 15, 2019 OWCP requested that Dr. Estaris submit a supplemental report
because he did not consider appellant’s left foot/ankle condition in calculating his left lower
extremity impairment rating because it resulted from appellant’s 2005 motorcycle accident. It
advised him that schedule awards not only include permanent impairment resulting from
conditions accepted by OWCP as job related, but also any nonindustrial permanent impairment in
the same scheduled member.
Dr. Estaris, in an October 24, 2019 letter, again utilized the findings in Dr. Dosanjh’s
March 18, 2019 report. He reiterated his prior finding that, based on the DBI method, appellant
had seven percent left lower extremity permanent impairment due to left knee medial meniscus
tear with joint arthritis. The DMA also reiterated why Dr. Dosanjh’s left knee impairment rating
was not acceptable under the A.M.A., Guides. Regarding impairment to the left ankle, he utilized
the DBI rating method and found that, under Table 16-2 on page 506, left ankle arthritis with twomm cartilage interval represented a CDX of 2 with a default value of 16 percent. The DMA
advised that a GMFH was not used because it was not reliable (inconsistent). He assigned a GMPE
of 3 for a tender left ankle with limited ROM and instability. The DMA indicated that a GMCS
was not used because an x-ray of the left ankle showed two mm to three mm cartilage interval and
it was used in the primary placement and class. He applied the net adjustment formula (GMPE –
CDX) = (3 - 2) = 1, which moved the default value one space to the right resulting in a class 1,
grade D, 17 percent permanent impairment of the left ankle. The DMA combined the 7 percent
permanent impairment rating of the left knee with the 17 percent permanent impairment rating of
the left ankle to find 23 percent permanent impairment of the left lower extremity. He also used
the ROM rating method to determine impairment to the left ankle and noted that, under Table 1622 and Table 16-20 on page 549, 30 degrees of plantar flexion, 12 degrees of dorsiflexion, and 14
degrees of eversion each yielded zero percent impairment, and 15 degrees of inversion yielded two
percent impairment, resulting in two percent permanent impairment. Referring to Table 16-25 and
Table 16-17 on pages 550 and 545, respectively, the DMA found that a ROM CDX of 1
represented two percent impairment and that a GMFH was not reliable, resulting in two percent
permanent impairment of the left ankle. He concluded that the 17 percent DBI left ankle
impairment rating was higher than the 2 percent ROM left ankle impairment rating and that it
should be used. The DMA explained that the main discrepancy between his and Dr. Dosanjh’s
left ankle impairment rating was that Dr. Dosanjh used the DBI method for class 3 pan-talar
arthritis based on page 505. He noted that the criteria for a diagnosis of arthritis under the DBI
method was one mm to two mm cartilage interval for all three joints. The DMA indicated that
Dr. Dosanjh’s measurements for the talonavicular joint was 1.4 mm, the talocalcaneal joint was
2.2 mm, and the tibiotalar joint was 2.9 mm rounded up to 3 mm. He advised that the tibiotalar
5

joint measurement did not meet the criteria for pan-talar arthritis. As such, the DMA maintained
that the CDX of pan-talar arthritis was not the appropriate diagnosis to use. He further maintained
that arthritis with two mm cartilage interval (the average of all three joints, rounded up to two mm)
was most appropriate and represented a CDX of 2 under Table 16-2. He reiterated his
determination that appellant reached MMI on March 18, 2019.
OWCP, by decision dated November 26, 2019, granted appellant a schedule award for 21
percent permanent impairment of the left leg. The award ran for 60.48 weeks from March 18,
2019 through May 14, 2020 and was based on the October 24, 2019 impairment rating of the
DMA, Dr. Estaris.
LEGAL PRECEDENT
The schedule award provisions of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants.
Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses.7 As of May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2009).8 The Board has approved 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.9
The sixth edition of the A.M.A., Guides provides a DBI method of evaluation utilizing the
World Health Organization’s International Classification of Functioning, Disability and Health
(ICF).10 In determining impairment for the lower extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the lower extremity
to be rated. With respect to the foot/ankle and knee, the relevant portions of the lower extremity
for the present case, reference is made to Table 16-2 through Table 16-4 beginning on page 501.11
After the CDX is determined from each of these tables (including identification of a default grade
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

8

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017).
9

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

10

A.M.A., Guides, page 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF):
A Contemporary Model of Disablement.
11

See A.M.A., Guides 501-11 (6th ed. 2009).

6

value), the net adjustment formula is applied using GMFH, GMPE, and GMCS. The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).12 Under Chapter 2.3,
evaluators are directed to provide reasons for their impairment rating choices, including choices
of diagnoses from regional grids and calculations of modifier scores.13
Regarding the application of ROM or DBI impairment methodologies in rating permanent
impairment of the upper extremities, FECA Bulletin No. 17-06 provides:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify: (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.” (Emphasis in the original.)
“If the rating physician provided an assessment using the DBI 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 [claims examiner] CE.
“If the medical evidence of record is not sufficient for the DMA to render a rating
on ROM where allowed, the DMA should advise as to the medical evidence
necessary to complete the rating. However, the DMA should still render an
impairment rating using the DMA method, if possible, given the available
evidence.”14
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish more than 21
percent permanent impairment of the left lower extremity for which he previously received
schedule award compensation.
In support of his schedule award claim, appellant submitted a March 18, 2019 report from
Dr. Dosanjh, who found that appellant had reached MMI due to his accepted left knee tear of the
12

Id. at 515-22.

13

Id. at 23-8.

14

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

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medial meniscus and authorized left knee arthroscopy with partial medial meniscectomy.
Dr. Dosanjh utilized the DBI rating method found at Table 16-315 of the sixth edition of the
A.M.A., Guides and determined that appellant’s accepted diagnosis and authorized surgery
represented a CDX of 1 with a default value of seven percent impairment. He assigned modifiers
and applied the net adjustment formula and found three percent permanent impairment of the left
knee. Dr. Dosanjh again utilized Table 16-3 and found that appellant’s primary knee arthritis with
three mm cartilage interval represented a CDX of 1 with a default grade C value of seven percent.16
He assigned a GMFH of 2, GMPE of 2, and GMCS of 2.17 Dr. Dosanjh applied the net adjustment
formula (GMFH - CDX) + (GMPE - CDX) + (GMCS – CDX) = (2 - 2) + (2 - 2) + (2 – 2) = 0,18
and found no adjustment in the default grade C permanent impairment of seven percent. He opined
that, since appellant’s primary knee arthritis yielded a higher impairment rating than the
impairment rating for his medial meniscus tear and partial medial meniscectomy, he had seven
percent permanent impairment of the left lower extremity based on pages 497 and 529. The Board
notes, however, that, while Dr. Dosanjh reported a CDX of 1 for appellant’s primary knee arthritis,
he incorrectly used a CDX of 2 in the net adjustment formula to calculate seven percent left knee
impairment. With respect to impairment to appellant’s left ankle, he utilized the DBI rating
method and found that his pan-talar arthritis represented a CDX of 3 under Table 16-219 because
it was a severe problem. Dr. Dosanjh assigned a GMFH of 2 due to an antalgic gait,20 a GMPE of
321 due to loss of ROM and severe palpatory findings (including crepitus and joint line tenderness
in the medial and lateral joint line, positive Talar tilt, and positive laxity), and a GMCS of 222 to
confirm the diagnosis of moderate pathology. He applied the net adjustment formula and found a
-2 net adjustment, which yielded permanent impairment of 26 percent. Dr. Dosanjh then referred
to the Combined Values Chart,23 and combined the 7 percent left knee impairment rating and the
26 percent left ankle/foot impairment rating, which resulted in 31 percent total permanent
impairment of the left lower extremity. He also utilized the ROM rating method to determine
permanent impairment to the left lower extremity. Dr. Dosanjh provided three active and passive
ROM measurements of appellant’s left ankle/foot. He did not provide a specific impairment rating
for permanent impairment due to loss of ROM, but concluded that appellant had 31 percent
permanent impairment of the left lower extremity as the DBI impairment rating was greater than
the ROM permanent impairment rating.

15

A.M.A., Guides at 509, Table 16-3.

16

Id. at 511, Table 16-3.

17

Id. at 516, Table 16-6; Id. at 517, Table 16-7; Id. at 519, Table 16-8.

18

Id. at supra note 14.

19

Id. at 505, Table 16-2.

20

Id. at 516, Table 16-6.

21

Id. at 517, Table 16-7.

22

Id. at 518, Table 16-8.

23

Id. at pages 604 through 606.

8

In accordance with its procedures, OWCP properly referred the medical record to
Dr. Estaris, a DMA,24 who reviewed the clinical findings of Dr. Dosanjh on September 13, 2019
and concurred with Dr. Dosanjh’s finding that appellant had seven percent permanent impairment
of the left lower extremity due to primary left knee medial meniscus tear with knee joint arthritis
with three mm interval at the medial joint space based on Dr. Dosanjh’s report and the A.M.A.,
Guides. However, he disagreed with Dr. Dosanjh’s assessment of the GMFH, GMPE, and GMCS
adjustments. Utilizing the DBI method, the DMA referred to Table 16-325 and determined that
appellant’s left knee diagnosis represented a CDX of 1 with a default value of seven percent. He
explained that, he did not assign a GMFH because Dr. Dosanjh’s assignment of a GMFH of 1 for
appellant’s left knee medial meniscus tear and a GMFH of 2 for his left knee arthritis were
inconsistent. Additionally, the DMA explained that a GMPE was not applicable for the same
reason as Dr. Dosanjh reported that the left knee had no tenderness, but also reported pain on
palpation. He maintained that tenderness was pain on palpation. The DMA indicated that a GMCS
was not used because the left knee x-rays were used to establish the diagnosis in the DBI grid. He
did not apply the net adjustment formula and opined that appellant had a class 1, grade C, seven
percent permanent impairment of the left lower extremity. The DMA explained that the ROM
rating method was not applicable to rate impairment of appellant’s left ankle as he mistakenly
noted that Dr. Dosanjh did not provide ROM measurements. He further explained that appellant’s
ankle injury resulted from a 2005 nonwork-related motorcycle accident. As appellant was
previously awarded two percent permanent impairment of his left lower extremity, the DMA
concluded that he was entitled to an additional impairment award of five percent, for a total of
seven percent left lower extremity permanent impairment.
On October 15, 2019 OWCP requested that the DMA provide a supplemental report rating
appellant’s left lower extremity impairment because he did not consider appellant’s nonindustrial
left foot/ankle injury sustained as a result of his 2005 motorcycle accident. In response, the DMA
submitted an October 24, 2019 report reiterating his prior finding that, based on the DBI method,
appellant had seven percent permanent impairment of the left lower extremity due to left knee
medial meniscus tear with joint arthritis with three mm interval at the medial joint space and his
rationale explaining why Dr. Dosanjh’s assessments for GMFH, GMPE, and GMCS adjustments
were not proper under the A.M.A., Guides. He utilized Dr. Dosanjh’s March 18, 2019 findings to
calculate impairment to the left ankle based on the DBI method. The DMA noted that appellant
had a default value of 16 percent for a CDX of arthritis with two-mm cartilage interval arthritis
under Table 16-2.26 He explained that a GMFH was not applicable because Dr. Dosanjh’s findings
were unreliable and inconsistent. The DMA assigned a GMPE of 3 for a tender left ankle with
limited ROM and instability. He explained that a GMCS was not used as a left ankle x-ray was
used to establish the placement and class of the diagnosis. After applying the net adjustment
formula,27 the DMA concluded, that the net adjustment value of 1 moved the default value one
space to the right resulting in 17 percent permanent impairment of the left ankle. He combined
24

Supra note 10 at Chapter 2.808.6(f) (March 2017).

25

Supra note 8.

26

Supra note 20.

27

Id. at 506, Table 16-2.

9

the 7 percent left knee impairment rating with the 17 percent left ankle impairment rating, which
yielded 23 percent total permanent impairment of the left lower extremity. The DMA also utilized
the ROM rating method to determine permanent impairment to the left ankle and found that, under
Table 16-22 and Table 16-20,28 30 degrees of plantar flexion, 12 degrees of dorsiflexion, and 14
degrees of eversion each yielded zero percent impairment, and 15 degrees of inversion yielded two
percent impairment, resulting in two percent permanent impairment of the left lower extremity.
Referring to Table 16-25 and Table 16-17,29 he found that appellant’s loss of ROM represented a
CDX of 1 with a default of two percent and that a GMFH was not reliable, resulting in two percent
permanent impairment of the left ankle. The DMA concluded that the 17 percent DBI left ankle
impairment rating should stand as it was greater than the 2 percent ROM left ankle impairment
rating. He explained the discrepancy between his and Dr. Dosanjh’s impairment rating, noting
that Dr. Dosanjh’s measurement of 2.9 mm or 3 mm for tibiotalar joint did not meet the criteria
for impairment due to class 3 pan-talar arthritis under Table 16-2.30 The DMA noted that the
criteria under Table 16-2 included one mm to two mm cartilage interval for all three joints. He
maintained that the most appropriate diagnosis was arthritis with two mm cartilage interval and
the average of the measurements of all three joints of 1.4 mm for the talonavicular joint, 2.2. mm
for the talocalcaneal joint, and 2.9 mm rounded up to three mm for the tibiotalar joint, yielded a
class 2 impairment under Table 16-2. The Board finds that the 23 percent left lower extremity
permanent impairment rating from the DMA represents the weight of the medical evidence in this
case as he properly applied the appropriate provisions of the A.M.A., Guides to the clinical
findings of record.31 There was no evidence establishing greater impairment.
On appeal counsel contends that appellant has 31 percent permanent impairment of the left
lower extremity based on the opinion of Dr. Dosanjh. As previously explained, however,
Dr. Dosanjh’s opinion is of diminished probative value as he failed to properly utilize the sixth
edition of the A.M.A., Guides to support an award greater than the 21 percent.32 There is no
current medical evidence, in conformance with the A.M.A., Guides, which supports any greater
impairment.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.

28

Id. at 549, Table 16-22 and Table 16-20.

29

Id. at 550, Table 16-25; Id. at 545, Table 16-17.

30

Id. 506, Table 16-2.

31

K.M., Docket No. 19-1526 (issued January 22, 2020); G.S., Docket No. 19-0277 (issued August 22, 2019); J.H.,
Docket No. 18-1207 (issued June 20, 2019).
32
K.P., Docket No. 18-0777 (issued November 13, 2018); M.P., Docket No. 13-1225 (issued October 23, 2013);
Linda Beale, 57 ECAB 429, 434 (2006). See also James Kennedy, Jr., 40 ECAB 620, 627 (1989).

10

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish more than 21
percent permanent impairment of the left lower extremity for which he previously received
schedule award compensation.
ORDER
IT IS HEREBY ORDERED THAT the November 26, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 12, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
SMITHSONIAN INSTITUTION, NATIONAL
ZOOLOGICAL PARK, Washington, DC,
Employer
__________________________________________

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Appearances:
Steven D. Scavuzzo, Esq., for the appellant
No appearance, for the Director

Docket No. 08-1384
Issued: October 21, 2008

Oral Argument September 18, 2008

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

JURISDICTION
On April 8, 2008 appellant, through her attorney, filed a timely appeal from a
December 4, 2007 merit decision of the Office of Workers’ Compensation Programs finding she
received an overpayment of compensation and that she was at fault in its creation. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the overpayment decision.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $124,416.57 for the period August 10, 2002 through November 25, 2006; and
(2) whether she was at fault in creating the overpayment.
FACTUAL HISTORY
On October 7, 1992 appellant, then a 37-year-old police officer, filed a claim alleging
that she sustained an injury to her back and neck in an October 5, 1992 motor vehicle accident.

She stopped work on October 7, 1992. The Office accepted the claim for a compression fracture
at T6 and paid her compensation beginning November 21, 1992.
By decision dated July 24, 2002, the Office terminated appellant’s compensation and
entitlement to medical treatment effective August 10, 2002 on the grounds that she had no
further injury-related disability or condition. It informed her that she must return any
compensation received after August 10, 2002.
The Office continued to pay appellant compensation for total disability after
August 10, 2002. On June 4, 2004 the Office of Personnel Management (OPM) informed the
Office that she had elected workers’ compensation benefits in lieu of retirement benefits. It
indicated that it would recover dual benefit payments made through June 1, 2004. In letters
dated November 1, 2005 and 2006, the Office requested that appellant provide information
regarding any wages that she earned from April 1, 2004 to March 31, 2005.
On November 22, 2006 the Office noted that it had failed to delete appellant from the
periodic rolls after it terminated her benefits. It calculated that it paid appellant $126,416.57
after the termination of her compensation.
On November 27, 2006 the Office informed appellant of its preliminary determination
that she received an overpayment of compensation in the amount of $126,416.57 for the period
August 10, 2002 through November 25, 2006 because she continued to receive compensation
after the termination of her benefits. It further advised her of its preliminary determination that
she was at fault in the creation of the overpayment. The Office requested that appellant complete
the enclosed overpayment recovery questionnaire and submit supporting financial documents. It
also 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.
On December 19, 2006 appellant submitted a completed overpayment recovery
questionnaire and requested waiver of the overpayment. In an accompanying letter, she related
that her attending physician had submitted November 11 and 25, 2002 medical reports
supporting continued employment-related disability. Appellant heard nothing further from the
Office until it requested earnings information on November 1, 2006. She believed that she was
entitled to disability compensation due to her October 6, 1992 work injury. Appellant enclosed
medical reports from Dr. Rida N. Azer, a Board-certified orthopedic surgeon, dated
November 11 and 25, 2002.1 She maintained that she would experience financial hardship
attempting to repay the debt.
On June 21, 2007 the Office requested that appellant complete another overpayment
recovery questionnaire. It noted that she provided workers’ compensation benefits as her
monthly income even though it had terminated her entitlement to compensation on
August 10, 2002. On July 16, 2007 appellant completed another overpayment recovery
questionnaire and submitted supporting financial documentation.
1

In a report dated November 11, 2002, Dr. Azer diagnosed carpal tunnel syndrome and a cervical and lumbar disc
syndrome. He opined that appellant was unable to work. On November 25, 2002 Dr. Azer found that she could not
perform her usual employment. The Office first received Dr. Azer’s reports on December 28, 2006.

2

By letter dated July 17, 2007, appellant’s attorney related that she believed that Dr. Azer
had submitted reports dated November 11 and 25, 2002 to the Office. Counsel stated:
“[Appellant] continued to receive her monthly workers’ compensation benefit
check uninterrupted after the August 2002 termination date passed, and she
assumed that the reason she did was that the reports submitted by Dr. Azer on her
behalf had convinced your office that she remained disabled as a result of her
work[-]related injury.”
The attorney noted that in May 2004 OPM told appellant that she must make an election
between disability retirement benefits and workers’ compensation payments. She elected to
continue to receive benefits from the Office. Appellant returned $21,458.97 she received from
OPM as a dual payment. Counsel argued that, if she had to pay the alleged overpayment of
$126,416.57 to the Office, she should be credited for the $21,458.97 paid to OPM and for the
amount per month that she should have received from OPM beginning May 31, 2004 to the
present.
By decision dated December 4, 2007, the Office finalized its finding that appellant
received an overpayment of compensation in the amount of $126,416.57 for the period
August 10, 2002 through November 25, 2006 because she continued to receive compensation
after the Office terminated her benefits. It further finalized its finding that she was at fault in the
creation of the overpayment. The Office considered the financial information submitted and
determined that appellant should forward a check for $1,000.00 each month to repay the
overpayment.
LEGAL PRECEDENT -- ISSUE 1
The Act2 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 the Act provides that, when an overpayment has been made to an individual
because of an error of fact or law, adjustment shall be made under regulations prescribed by the
Office, by decreasing later payments to which the individual is entitled.4
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained a compression fracture at T6 due to an
October 6, 1992 motor vehicle accident. It paid her compensation for disability beginning
November 21, 1992. By decision dated July 24, 2002, the Office terminated her entitlement to
compensation benefits effective August 10, 2002. It, however, continued to pay appellant wageloss compensation in the amount of $124,416.57 from August 10, 2002 through
November 25, 2006. Appellant thus received a $124,416.57 overpayment of compensation.
2

5 U.S.C. §§ 8101-8193.

3

5 U.S.C. § 8102(a).

4

5 U.S.C. § 8129.

3

Appellant, through her attorney, contends that the overpayment of $124,416.57 should be
reduced by the $21,458.97 that she provided to OPM to repay a dual payment and by the amount
of OPM benefits that she lost by electing benefits from the Office. She can, however, request
that OPM provide her an opportunity to make a knowing election of OPM benefits as she is not
entitled to workers’ compensation benefits.
LEGAL PRECEDENT -- ISSUE 2
Under section 8129 of the Act and its implementing regulations, an overpayment must be
recovered unless incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of the Act or would be against equity and
good conscience.5 Section 10.433 of the implementing regulations provides that the Office may
consider waiving an overpayment if the individual to whom it was made was not at fault in
accepting or creating the overpayment.6 The regulation further provides that each recipient of
compensation benefits is responsible for taking all reasonable measures to ensure that payments
he or she receives from the Office are proper.7 Under the regulations, a recipient will be found to
be at fault with respect to creating an overpayment if he or she accepted a payment which he or
she knew or should have known to be incorrect.8 Whether the Office determines that an
individual was at fault with respect to the creation of an overpayment depends on the
circumstances surrounding the overpayment.9
ANALYSIS -- ISSUE 2
By accepting payments after her entitlement to benefits was terminated effective
August 10, 2002, appellant accepted payments that she knew or should have known were
incorrect. In its July 24, 2002 termination decision, the Office notified her that she must return
any compensation received after August 10, 2002. As noted, however, the Office paid appellant
compensation payments from August 10, 2002 through November 25, 2006 in the amount of
$124,416.57. Appellant was aware that the Office had terminated her entitlement to benefits and
the Office explicitly informed her that she must return any compensation received after
August 10, 2002. Thus, she accepted payments that she knew or should have known to be
incorrect. Accordingly, the Board finds that appellant was at fault in the creation of the
overpayment. The fact that the Office may have been negligent in issuing the payments does not
mitigate this finding.10

5

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

6

Id. at § 10.433(a).

7

Id.

8

20 C.F.R. § 10.433(a)(3); Tammy Craven, 57 ECAB 589 (2006).

9

20 C.F.R. § 10.433(b); Neill D. Dewald, 57 ECAB 451 (2006).

10

See 20 C.F.R. § 10.435(a); D.R., 59 ECAB ___ (Docket No. 07-823, issued November 1, 2007); William E.
McCarty, 54 ECAB 525 (2003).

4

Appellant’s attorney contended that she believed that the Office had reconsidered its
termination of her benefits based on the submission of November 2002 reports from Dr. Azer.
Counsel also argued that she believed that she was entitled to benefits from the Office as OPM
sent her a letter requesting that she make an election of benefits between the Office and OPM
letters and as the Office requested information about her earnings and income. In determining
fault, the Office applies a “reasonable person” test.11 The Board finds that, under the
circumstances of the case, it was not reasonable for appellant to believe that she was entitled to
continued compensation payments after August 10, 2002 given the plain language of the Office’s
termination decision and explicit instruction that any compensation received after August 10,
2002 must be returned.
As appellant was at fault in the creation of the overpayment, she is not eligible for waiver
of recovery of the overpayment. The Office is required by law to recover the overpayment.12
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $124,416.57 for the period August 10, 2002 through November 25, 2006. The Board further
finds that she was at fault in creating the overpayment.

11

Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

12

With respect to recovery of the overpayment, the Board’s jurisdiction is limited to those cases where the Office
seeks recovery from continuing compensation benefits under the Act. 20 C.F.R. § 10.441(a); see also Bob R. Gilley,
51 ECAB 377 (2000). As appellant is not in receipt of continuing compensation payments under the Act, the issue
of recovery is not before the Board.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 4, 2007 is affirmed.
Issued: October 21, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Orlando, FL, Employer
__________________________________________

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

Docket No. 13-894
Issued: July 8, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 5, 2013 appellant, through her attorney, filed a timely appeal from a
February 5, 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.
ISSUE
The issue is whether appellant has more than a one percent left leg permanent
impairment.
FACTUAL HISTORY
The case was before the Board on a prior appeal. OWCP accepted that appellant
sustained a left knee contusion and left knee derangement when she tripped on a chair in the
performance of duty on October 13, 2006. Appellant underwent arthroscopic left knee surgery
1

5 U.S.C. § 8101 et seq.

on February 9, 2007.2 By decision dated April 3, 2009, the Board affirmed a June 12, 2008
OWCP decision denying a schedule award.3 The Board noted that the medical evidence did not
contain a probative opinion as to a permanent impairment. The history of the case as recorded
by the Board in the prior decision is incorporated herein by reference.
In a report dated May 12, 2010, Dr. Robert Murrah, a Board-certified orthopedic surgeon,
diagnosed chronic left knee pain and swelling following an October 13, 2006 injury and
chondromalacia patella. He noted that a recent MRI scan showed some chondromalacia patella,
but the meniscal structures showed only some mild degenerative changes and no obvious tears.
By report dated August 10, 2010, Dr. Murrah stated that appellant had reached maximum
medical improvement and the impairment was five percent to the whole body relative to
appellant’s employment injury. In a report dated October 26, 2010, he stated that under the
American Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter
the A.M.A., Guides) he assigned appellant an 11 percent permanent impairment relative to her
left knee.
On April 10, 2012 OWCP asked an OWCP medical adviser for an opinion as to an
employment-related permanent impairment. In a report dated April 13, 2012, the medical
adviser noted that appellant had surgery despite a normal MRI scan. He opined that appellant
had a one percent left leg impairment based on Table 16-3 of the A.M.A., Guides (6th ed.). As to
grade modifiers, the medical adviser assigned a two for functional history, one for physical
examination and found clinical studies were not applicable “per MRI [scan] and op[erative]
note.”
By decision dated July 10, 2012, OWCP issued a schedule award for a one percent
permanent impairment to the left leg. The period of the award was 2.88 weeks commencing
August 10, 2010.
Appellant requested a hearing, which was held on November 16, 2012. By decision
dated February 5, 2013, the hearing representative affirmed the July 10, 2012 decision.
LEGAL PRECEDENT
Section 8107 of FECA 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

2

The report from the orthopedic surgeon, Dr. Charles Veurink, noted that a magnetic resonance imaging (MRI)
scan did not show any definite meniscal or ligamentous injury. The record contains an October 25, 2006 MRI scan
report.
3

Docket No. 08-2054 (issued April 3, 2009).

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).

2

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
With respect to a knee impairment, the A.M.A., Guides provides a regional grid at Table
16-3. The class of impairment (CDX) is determined based on specific diagnosis, and then the
default value for the identified CDX is determined. The default value (grade C) may be adjusted
by using grade modifiers for Functional History (GMFH) Table 16-6, Physical Examination
(GMPE) Table 16-7 and Clinical Studies (GMCS) Table 16-8. The adjustment formula is
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).8
7

ANALYSIS
In the present case, OWCP issued a schedule award for a one percent permanent
impairment to the left leg, based on the report of an OWCP medical adviser. The Board notes
that an attending physician, Dr. Murrah, had opined in an October 26, 2010 report that appellant
had an 11 percent impairment. This opinion is of little probative value to the issue presented. A
medical opinion as to the degree of permanent impairment under the A.M.A., Guides must be
supported by specific reference to tables or other provisions of the A.M.A., Guides and
explanation as to how the provisions were applied.9 Dr. Murrah’s opinion as to an 11 percent
impairment was not accompanied by any specific explanation as to how the impairment was
calculated.
OWCP’s medical adviser took findings from Dr. Murrah and applied the A.M.A., Guides.
Table 16-3 is the knee regional grid, as noted above, and the medical adviser found a soft tissue
knee injury of class 1 severity (mild problem). The grade C (default) impairment is one percent
to the leg, but with respect to whether there should be an adjustment to the default impairment,
the opinion of the medical adviser requires clarification. It is evident that the adjustment formula
noted above was not properly applied by the medical adviser based on the grade modifiers
identified. According to the medical adviser, the grade modifier for functional history grade
modifier 2, and for physical examination the grade modifier 1 (with no clinical studies grade
modifier applicable). As noted above, the formula would be (2-1) + (1-1) or +1. The medical
adviser incorrectly divides by 3 and states the adjustment is 1/3, rounded to 0. The adjustment
based on OWCP’s medical adviser’s determination was +1, or a grade D impairment (two
percent under Table 16-3).10
There remains, however, an additional need for clarification as to clinical studies. The
medical adviser found that clinical studies were not applicable. A grade modifier may be found

5

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

6

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

7

A.M.A., Guides 509, Table 16-3.

8

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

9

See Mary L. Henninger, 52 ECAB 408 (2001).

10

A.M.A., Guides 509.

3

not applicable if it was used for the “primary placement” in the regional grid,11 but the medical
adviser referred to an operative note and MRI scan, which appeared to refer to the 2006 MRI
scan and the 2007 surgery. The record indicated that Dr. Murrah reviewed a more recent MRI
scan in his May 12, 2010 report. If the medical adviser is finding that a specific MRI scan or
other clinical study was used for primary placement in the regional grid, and therefore not used
for adjustment, then that finding should be made clear. Otherwise Table 16-8 should be applied
and the GMCS determined.12
The case will be remanded to OWCP for a proper medical opinion on the issue presented.
After such further development as OWCP deems necessary, it should issue an appropriate
decision.
CONCLUSION
The Board finds that the case must be remanded to OWCP for additional development of
the medical evidence.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 5, 2013 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: July 8, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

11

Id. at 516.

12

Id. at 519, Table 16-8.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
White Plains, NY, Employer
__________________________________________

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Appearances:
Rita H. Patrick, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1081
Issued: November 15, 2017

Case Submitted on the Record

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

JURISDICTION
On April 24, 2017 appellant, through his representative, filed a timely appeal from a
March 16, 2017 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.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount $2,370.42 because he received duplicate wage-loss compensation checks for the period
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.

December 14, 2014 to January 10, 2015; (2) whether OWCP properly found him at fault and thus
not entitled to waiver of recovery of the overpayment; and (3) whether OWCP properly required
recovery of the overpayment by deducting $100.00 every 28 days from his continuing
compensation payments.
On appeal appellant’s representative asserts that, because she did not receive information
requested from OWCP until February 15, 2017, she was unable to determine if appellant was
with or without fault.
FACTUAL HISTORY
On December 16, 2001 appellant, then a 27-year-old mail processor, suffered back pain
when reaching into a hamper. He did not stop work. OWCP adjudicated the claim OWCP under
File No. xxxxxx122 as a short-form closure case. In a claim adjudicated by OWCP under File
No. xxxxxx507, OWCP accepted a May 31, 2002 injury for right shoulder strain, right shoulder
impingement syndrome, and lumbosacral strain. Appellant stopped work on the date of injury,
had right shoulder arthroscopic repair on October 28, 2002, and returned to modified duty on
November 26, 2003.
On March 15, 2008 appellant filed a traumatic injury claim (Form CA-1), alleging that on
February 20, 2008 he injured his lower back and extremities when bending over and lifting tubs
of mail. He stopped work that day and returned on March 5, 2008. OWCP adjudicated the claim
under File No. xxxxxx487, the master file.
On March 26, 2008 appellant filed a recurrence claim (Form CA-2a) under File No.
xxxxxx507, alleging a recurrence of disability on March 23, 2008 when he was unable to
perform work duties due to pain. By decision dated May 22, 2008, OWCP denied the recurrence
claim. Appellant, through his representative, timely requested a hearing with OWCP’s Branch of
Hearings and Review. He returned to modified duty on June 3, 2008.
On August 26, 2008 OWCP denied the traumatic injury claim, adjudicated under File No.
xxxxxx487. Appellant’s representative timely requested a hearing.
On December 16, 2008 an OWCP hearing representative affirmed the May 22, 2008
decision that denied appellant’s recurrence claim, under File No. xxxxxx507. Under File No.
xxxxxx507, appellant filed a second recurrence claim on September 5, 2008, alleging that he
sustained a recurrence of disability on September 4, 2008. He did not return to work. In a
May 5, 2009 decision, OWCP denied this recurrence claim. Appellant timely requested a
hearing.
On April 1, 2009 OWCP informed appellant that his traumatic injury claim, adjudicated
under File No. xxxxxx487, had been accepted for aggravation of thoracic or lumbosacral neuritis
or radiculitis; aggravation of sprain of shoulder and upper arm, unspecified site, right; and
aggravation of disorder of bursae and tendons in shoulder region, unspecified.
In a November 12, 2009 decision, adjudicated under File No. xxxxxx507, an OWCP
hearing representative found that appellant had established a recurrence of disability on
September 4, 2008 and reversed the May 5, 2009 decision. The hearing representative noted that
2

appellant’s February 20, 2008 traumatic injury claim had been accepted. Appellant returned to
part-time modified duty on March 27, 2010 and received wage-loss compensation for partial
disability.3
OWCP accepted a recurrence of total disability beginning February 4, 2011 when
appellant had repeat right shoulder arthroscopic surgery. Appellant received appropriate wageloss compensation and was placed on the periodic compensation rolls.4
Under File No. xxxxxx487, on December 21, 2012 OWCP additionally accepted right
knee medial meniscus tear and bilateral strain of knee and leg. On January 24, 2013 appellant
had arthroscopic partial medial and lateral meniscectomy of the right knee.
In letters dated May 23, 2013 and December 15, 2014, OWCP informed appellant of a
Department of Treasury regulation that required that all federal payments be made electronically.
It noted that appellant still received his FECA compensation by paper check form and attached
an electronic fund transfer (EFT) form, urging him to submit it so that his compensation could be
paid electronically. Appellant did not return an EFT form to OWCP at that time.
Appellant telephoned OWCP on January 20, 2015 indicating that he had not received his
FECA compensation check for January 10, 2015. He confirmed this in correspondence dated
January 21, 2015, and asked that another check be issued.
On January 26, 2015 a tracer was initiated by OWCP, and a stop payment was placed on
the check. Appellant was informed that a replacement check would be issued, and this was done
on February 13, 2015.
On May 20, 2015 appellant had authorized left knee arthroscopic surgery to repair a torn
lateral meniscus.
On July 9, 2015 appellant submitted EFT information for direct deposit of his FECA
compensation.
An April 19, 2016 tracer report indicates that check number xxxxxxxx7251, issued on
February 13, 2015 in the amount of $2,370.42 was paid on February 24, 2015, and that check
number xxxxxxxx1499, issued on January 10, 2015 in the amount of $2,370.42 and was paid on
July 29, 2015. Appellant was the payee on both checks. Both checks covered the period
December 14, 2014 to January 10, 2015. The record indicates that even though the January 10,
2015 was cancelled, it was cashed after cancellation. The report also contains a list of
3

By decision dated June 1, 2010, OWCP found that an overpayment of compensation in the amount of $716.28
had been created because appellant continued to receive compensation through April 10, 2010 after his return to
work on March 27, 2010. The overpayment was deducted from appellant’s continuing compensation.
4

In an August 3, 2012 decision, OWCP found that appellant received a $7,381.07 overpayment of compensation
because health benefit deductions were not made from September 1, 2008 through April 9, 2010 and February 5,
2011 through December 17, 2011. Appellant was found without fault, but waiver was denied. OWCP deducted
$100.00 every 28 days from appellant’s continuing compensation to collect the overpayment. On November 13,
2013 the Board dismissed the representative’s appeal of the August 3, 2012 decision because there was no indication
that appellant authorized the representative before the Board. Docket No. 13-628 (issued November 13, 2013).

3

appellant’s FECA compensation from October 18, 2014 to January 9, 2016 and copies of both
checks, endorsed for deposit by appellant to the same account.
On October 13, 2016 OWCP issued a preliminary determination that appellant received
an overpayment of compensation in the amount of $2,370.42 because he received duplicate
FECA compensation payments for the period December 14, 2014 to January 10, 2015. OWCP
found him at fault because he accepted a payment that he knew or reasonably should have known
was incorrect. Appellant was provided an overpayment action request form and an overpayment
recovery questionnaire (OWCP Form 20).
Appellant submitted an overpayment action request dated November 2, 2016 in which he
requested a prerecoupment hearing. He disagreed that an overpayment occurred or that he was at
fault, alleging that OWCP failed to establish that an overpayment existed. In an attached
overpayment recovery questionnaire (OWCP Form 20) appellant listed monthly income of
FECA compensation of $2,364.78, monthly expenses of $2,243.00, and assets totaling $150.00.
On November 7, 2016 appellant’s representative requested copies of benefit statements
for the period December 14, 2014 through November 11, 2016, copies of all checks cashed for
that period, copies of OWCP policies and procedures for replacing checks, and copies of any
documents or request appellant may have submitted relevant to an overpayment.
In correspondence dated January 30, 2017, addressed to appellant’s representative,
OWCP noted that benefit statements were issued by the Department of the Treasury, but that it
was forwarding a copy of appellant’s compensation history for the period December 14, 2014
through November 12, 2016. It further explained that it had no access to cashed checks as all
payments were issued by the Department of the Treasury, but forwarded a copy of a check
cashed for the period December 14, 2014 to January 10, 2015. OWCP explained that procedures
for replacing checks were listed on OWCP CA-1032 forms and enclosed a copy for her attention.
As to her request for documents or requests submitted by appellant relevant to an overpayment,
since there was more than one overpayment declared, more specific information was needed.
At the hearing, held on February 10, 2017, appellant’s representative agreed that copies
of two checks were attached to the preliminary overpayment decision. She requested that the
original checks should be forwarded for review. Appellant testified that he did not recall
requesting a second check in writing and did not recall cashing two checks. The hearing
representative noted that the two checks indicated that they were for the same period,
December 14, 2014 to January 10, 2015.
By decision dated March 16, 2017, an OWCP hearing representative finalized the
preliminary overpayment determination, finding that appellant received an overpayment of
compensation in the amount of $2,370.42 because he received and cashed duplicate
compensation checks for the same compensation period. The hearing representative further
found that appellant was at fault and thus not entitled to waiver of recovery of the overpayment.
Repayment in the amount of $100.00 was to be deducted every 28 days from his continuing
compensation.

4

LEGAL PRECEDENT -- ISSUE 1
FECA provides that the United States shall pay compensation for the disability or death
of an employee resulting from personal injury sustained while in the performance of his or her
duty.5 When an overpayment has been made to an individual 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 the individual is entitled.6
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $2,370.42 for the period December 14, 2014 to January 10, 2015.
The record indicates that on January 10, 2015 appellant was issued a check in the amount
of $2,370.42. As shown on its face, this check covered the period December 14, 2014 to
January 10, 2015. Contrary to appellant’s assertion on appeal, he advised OWCP by telephone
on January 20, 2015 and in writing on January 21, 2015 that he did not receive his check.
OWCP issued a stop payment on January 26, 2015, and on February 13, 2015 appellant was
issued a replacement check in the amount of $2,370.42 for the period December 14, 2014 to
January 10, 2015. Appellant deposited this check into his account on February 24, 2015. The
record also indicates that on or before July 29, 2015 appellant received the check dated
January 10, 2015, which, even though a stop payment was issued, he successfully deposited this
check into his account on July 29, 2015. The record thus establishes that duplicate payments
were made for the period December 14, 2014 to January 10, 2015, and both checks were
deposited by appellant. Therefore, an overpayment of compensation in the amount of $2,370.42
was created.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”7
Section 10.433(a) of OWCP regulations provides that OWCP:
“[M]ay consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of
compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she receives from OWCP are proper. The recipient must
show good faith and exercise a high degree of care in reporting events which may
5

5 U.S.C. § 8102(a).

6

Id. at § 8129(a).

7

Id. at § 8129; see Linda E. Padilla, 45 ECAB 768 (1994).

5

affect entitlement to or the amount of benefits. A recipient who has done any of
the following will be found to be at fault in creating an overpayment:
(1) Made an incorrect statement as to a material fact which he or she knew
or should have known to be incorrect; or
(2) Failed to provide information which he or she knew or should have
known to be material; or
(3) Accepted a payment which he or she knew or should have known to be
incorrect. (This provision applies only to the overpaid individual).”8
To determine if an individual was at fault with respect to the creation of an overpayment,
OWCP examines 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.9
ANALYSIS -- ISSUE 2
OWCP determined that appellant was at fault in the creation of the overpayment under
the third standard, because he accepted a payment he knew or should have known was incorrect.
As noted, it initially issued a paper check for $2,370.42 on January 10, 2015 to cover
compensation for the period December 14, 2014 to January 10, 2015. Appellant reported this
check missing, and was issued a duplicate check on February 13, 2015. He deposited the
February 13, 2015 check on February 24, 2015. The record also indicates that appellant
subsequently deposited the check dated January 10, 2015 on July 29, 2015. The record contains
an image of the face of each check, noting that the period of compensation covered was
December 14, 2014 to January 10, 2015. The record also contains an image of the back of each
check which clearly displays appellant’s signature.10 Appellant thus knew or reasonably should
have known at the time he deposited the second check on July 29, 2015 that he was not entitled
to receive a second check for the same period for which he had already received the
compensation by duplicate check.
Therefore, the evidence of record establishes that appellant knew or reasonably should
have known at the time he deposited the January 10, 2015 check on July 29, 2015 that he was not
entitled to this duplicate compensation payment, since he had previously deposited a check
covering the same compensation period on February 24, 2015. The record establishes appellant
accepted a payment at the time of deposit on July 29, 2015, which he knew or should have

8

20 C.F.R. § 10.433(a); see Sinclair L. Taylor, 52 ECAB 227 (2001); see also 20 C.F.R. § 10.430.

9

20 C.F.R. 10.433(b); Neill D. Dewald, 57 ECAB 451 (2006).

10

Compare his signature on the overpayment action request signed and dated by appellant on November 2, 2016.

6

known to be incorrect.11 Thus, the Board finds that appellant was at fault in creating the
overpayment and thus waiver of recovery of the overpayment is precluded.12
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP’s regulations provides that when an overpayment has been
made to an individual who is entitled to further payments, the individual shall refund to OWCP
the amount of the overpayment as soon as the error is discovered or his or her attention is called
to the same. If no refund is made, OWCP shall decrease later payments of compensation, taking
into account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual and any other relevant factors, so as to minimize hardship.13
ANALYSIS -- ISSUE 3
The record supports that, in requiring repayment of the $2,370.42 overpayment by
deducting $100.00 every four weeks from appellant’s compensation payments, OWCP took into
consideration the financial information submitted by him as well as the factors set forth in
section 10.441(a) of its regulations and found that this method of recovery would minimize any
resulting hardship on appellant. Therefore, it properly required repayment of the overpayment
by deducting $100.00 from appellant’s compensation payments every four weeks.14
Finally, as to the representative’s assertion on appeal regarding the untimely receipt of
requested information, the record indicates that on November 7, 2016 she requested specific
information from OWCP. On January 30, 2017 OWCP forwarded the information requested that
was under its purview and informed her that some of the requested information was under the
purview of the Department of the Treasury. On appeal the representative admits that she
received the information from OWCP on February 15, 2017. The final decision was not issued
until March 16, 2017. The record does not indicate that appellant or his representative contacted
OWCP between the February 10, 2017 hearing and issuance of the final overpayment decision
on March 16, 2017.

11

S.M., Docket No. 16-1127 (issued December 12, 2016). See also 20 C.F.R. § 10.430(a)-(b) (notes that OWCP
includes on each periodic check a clear indication of the period for which payment is being made; by these means,
OWCP puts the recipient on notice that a payment was made and the amount of the payment).
12

Id.

13

20 C.F.R. § 10.441; see Steven R. Cofrancesco, 57 ECAB 662 (2006).

14

Id.; see C.P., Docket No. 13-1341 (issued January 6, 2014).

7

CONCLUSION
The Board finds that OWCP properly determined that appellant was at fault in the receipt
of an overpayment of compensation in the amount of $2,370.42, and that OWCP properly
required recovery of the overpayment by deducting $100.00 every 28 days from his continuing
compensation payments.
ORDER
IT IS HEREBY ORDERED THAT the March 16, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 15, 2017
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
DORIS MILLER VA MEDICAL CENTER,
Waco, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 21-1296
Issued: March 23, 2022

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 August 28, 2021 appellant filed a timely appeal from an April 5, 2021 merit decision
and an August 24, 2021 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. 2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the August 24, 2021 decision, appellant submitted additional evidence to OWCP.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish a traumatic
injury in the performance of duty on January 29, 2021, as alleged; and (2) whether OWCP properly
denied appellant’s request for an oral hearing as untimely filed pursuant to 5 U.S.C. § 8124(b).
FACTUAL HISTORY
On February 24, 2021 appellant, then a 61-year-old nursing assistant, filed a traumatic
injury claim (Form CA-1) alleging that, on January 29, 2021, she sustained injuries to her neck,
back, hips, right arm, right elbow, right leg, and right knee while in the performance of duty. She
reported that, as she turned right on the sidewalk toward her car, she stepped into a hole in the
ground, causing her to lose her balance, twist her body, and fall backwards. Appellant also claimed
that she experienced blurred vision, difficulty balancing, and intermittent headaches. On the
reverse side of the claim form, her supervisor, indicated that appellant was not injured in the
performance of duty because she was leaving work for the day at the time of the fall. She stopped
work on February 1, 2021.
In a March 2, 2021 development letter, OWCP informed appellant of the deficiencies of
her claim. It advised her as to the type of factual and medical evidence required and provided a
questionnaire for her completion. OWCP afforded appellant 30 days to respond. No further
evidence was received.
By decision dated April 5, 2021, OWCP denied appellant’s traumatic injury claim, finding
that the submitted evidence did not establish that the January 29, 2021 incident occurred, as
alleged. It noted that appellant had not completed and returned its factual questionnaire. OWCP
concluded, therefore, that the requirements had not been met to establish an injury as defined by
FECA.
OWCP subsequently received a February 5, 2021 medical report from Dr. Gilbert
Mayorga, a Board-certified family medicine specialist, relating that appellant was “performing her
usual job duties” on or about January 29, 2021 and, as she was exiting the building, lost her footing,
slipped, and fell backwards, twisting her right knee. He noted appellant’s symptoms of pain,
discomfort, and loss of range of motion in her neck, thoracic spine, and lumbosacral spine, pain
and discomfort of the right upper extremity, intermittent numbness and tingling in the upper and
lower extremities, and pain, discomfort, swelling, and abrasions to her right knee. He examined
appellant and diagnosed sprains of the cervical spine, thoracic spine, lumbosacral spine, right
elbow, right shoulder, right wrist, and right knee, as well as lumbar radiculitis, cervical radiculitis,
and abrasions and contusions of the right arm and right knee. Dr. Mayorga advised that appellant
should remain off work. 3

3

Appellant underwent multiple x-ray scans on February 12, 2021. The cervical spine x-ray revealed C2-3 facet
fusion and multilevel spondylosis with C4-5 anterior osteophyte formation. The lumbar spine x-ray revealed no acute
findings. The right knee x-ray revealed a bipartite patella with advanced degenerative change versus old healed
fracture with advanced degenerative change in the patellofemoral articulation. The right shoulder x -ray revealed
acromioclavicular arthropathy and probably calcific peritendinitis, but no evidence of fracture. The right elbow and
right wrist x-rays were negative for fracture or dislocation.

2

On July 2, 2021 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review.
By decision dated August 24, 2021, OWCP denied appellant’s request for an oral hearing
as untimely filed, finding that her request was not made within 30 days of the April 5, 2021 OWCP
decision as it was postmarked on July 2, 2021. It further exercised discretion and determined that
the issue in this case could equally well be addressed by a request for reconsideration before
OWCP along with the submission of new evidence.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, 5 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. 6 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.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established. 8 Fact
of injury consists of two components that must be considered in conjunction with one another.
First, the employee must submit sufficient evidence to establish that he or she actually experienced
the employment incident at the time and place, and in the manner alleged. 9 Second, the employee
must submit sufficient evidence to establish that the employment inc ident caused a personal
injury.10
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his or her subsequent course of
action.11 The employee has not met his or her burden of proof to establish th e occurrence of an
4

Supra note 1.

5

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

E.M., Docket No. 18-1599 (issued March 7, 2019); T.H., 59 ECAB 388, 393-94 (2008).

9

L.T., Docket No. 18-1603 (issued February 21, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

10

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

11

M.F., Docket No. 18-1162 (issued April 9, 2019); Charles B. Ward, 38 ECAB 667, 67-71 (1987).

3

injury when there are inconsistencies in the evidence that cast serious doubt upon the validity of
the claim. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s
statements in determining whether a prima facie case has been established. 12 An employee’s
statements alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence.13
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury in the performance of duty on January 29, 2021, as alleged.
Appellant has not established the factual component of her claim as she has insufficiently
explained how and where the claimed injury occurred. 14 In her February 24, 2021 Form CA-1,
she indicated that on January 29, 2021 she sustained multiple injuries when she turned right on the
sidewalk toward her car, stepped into a hole in the ground, lost her balance, twisted, and fell
backwards. On the reverse side of the claim form her supervisor indicated that appellant was
leaving work for the day at the time of her injury. Appellant did not submit a detailed account of
the alleged injury or any additional corroborating factual evidence describing how and where she
sustained an injury on January 29, 2021. The Board has held that such a vague recitation of facts
does not support a claimant’s allegation that a specific event occurred to cause a work-related
injury.15
OWCP, in its March 2, 2021 development letter, informed appellant of the type of factual
and medical evidence needed to establish her traumatic injury claim. It requested that she complete
an attached questionnaire and provide a detailed factual description of the alleged employment
incident. Appellant, however, did not respond.16
Appellant has not provided a sufficient description of the alleged employment incident and
the mechanism by which she sustained an injury; therefore, the Board finds that she has not met
her burden of proof.17 As appellant has not met her burden of proof to establish that an incident
occurred in the performance of duty, as alleged, it is unnecessary to address the medical evidence
of record regarding causal relationship.18

12

Betty J. Smith, 54 ECAB 174 (2002); L.D., Docket No. 16-0199 (issued March 8, 2016).

13

See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).

14

See E.C., Docket No. 19-0943 (issued September 23, 2019).

15

M.C., supra note 13; M.B., Docket No. 11-1785 (issued February 15, 2012).

16

See M.F., supra note 11.

17

H.D., Docket No. 15-1698 (issued May 4, 2016).

18

J.C., Docket No. 19-0542 (issued August 14, 2019); see M.P., Docket No. 15-0952 (issued July 23, 2015);
Alvin V. Gadd, 57 ECAB 172 (2005).

4

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that “a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the issuance
of the decision, to a hearing on his [or her] claim before a representative of the Secretary.”19
Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA provide
that a claimant shall be afforded a choice of an oral hearing or a review of the written record by a
representative of the Secretary. 20 A claimant is entitled to a hearing or review of the written record
as a matter of right only if the request is filed within the requisite 30 days as determined by
postmark or other carrier’s date marking and before the claimant has requested reconsideration. 21
Although there is no right to a review of the written record or an oral hearing if not requested
within the 30-day time period, OWCP may within its discretionary powers grant or deny
appellant’s request and must exercise its discretion.
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for an oral hearing as
untimely filed pursuant to 5 U.S.C. § 8124(b).
OWCP’s regulations provide that the request for an oral hearing must be made within 30
days of the date of the decision for which review is sought. 22 Because appellant’s hearing request
was postmarked on July 2, 2021, it post-dated OWCP’s April 5, 2021 decision by more than 30
days and, therefore, is untimely. Appellant was, therefore, not entitled to an oral hearing as a
matter of right. 23
OWCP, however, has the discretionary authority to grant the request and it must exercise
such discretion. 24 The Board finds that, in the August 24, 2021 decision, OWCP properly
exercised its discretion by determining that the issue in the case could be equally well addressed
through a request for reconsideration before OWCP, along with the submission of additional
evidence.
The Board has held that the only limitation on OWCP’s authority is reasonableness. An
abuse of discretion is generally shown through proof of manifest error, clearly unreasonable
19

5 U.S.C. § 8124(b)(1).

20

20 C.F.R. §§ 10.616, 10.617.

21

Id. at § 10.616(a).

22

Supra note 19; Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record,
Chapter 2.1601.4(a) (September 2020).
23

See P.C., Docket No. 19-1003 (issued December 4, 2019).

24

Id.

5

exercise of judgment, or actions taken which are contrary to both logic and probable deductions
from established facts.25 In this case, the evidence of record does not indicate that OWCP abused
its discretion by denying appellant’s request for an oral hearing. Accordingly, the Board finds that
OWCP properly denied her request for an oral hearing pursuant to 5 U.S.C. § 8124(b) as untimely
filed.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury in the performance of duty on January 29, 2021, as alleged. The Board further finds that
OWCP properly denied her request for an oral hearing as untimely filed pursuant to 5 U.S.C.
§ 8124(b).
ORDER
IT IS HEREBY ORDERED THAT the April 5 and August 24, 2021 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 23, 2022
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

25

Id.

6