United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
Portland, OR, Employer
__________________________________________

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Appearances:
Paul H. Felser, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1889
Issued: May 17, 2017

Case Submitted on the Record

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

JURISDICTION
On September 27, 2016 appellant, through counsel, filed a timely appeal from a
March 31, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $54,341.91 for the period January 1, 2007 to
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.

June 28, 2014; (2) whether OWCP properly determined that appellant was at fault in the creation
of the overpayment of compensation, thereby precluding waiver of recovery of the overpayment;
and (3) whether OWCP properly required repayment of the overpayment by deducting $2,500.00
every 28 days from appellant’s continuing compensation payments.
On appeal, counsel disagrees with OWCP’s calculation of the overpayment amount and
finding of fault. He contends that waiver of recovery of the overpayment should be considered.
FACTUAL HISTORY
On April 23, 2002 appellant, then a 60-year-old supervisory attorney advisor, filed an
occupational disease claim (Form CA-2) alleging that she had acute stress disorder and acute
reactive stress disorder that were caused or aggravated by her federal employment.3 In an
accompanying statement, she attributed her conditions to intense verbal abuse, hostility, fits of
rage, threats, and unprofessional conduct by her subordinates. OWCP accepted appellant’s claim
for acute reaction to stress, irritable bowel syndrome, post-traumatic stress disorder (PTSD), and
migraines. Appellant last stopped work on December 11, 2006 and has not returned.
In a Form CA-1049 letter dated December 20, 2006 OWCP informed appellant of her
placement on the periodic rolls, effective December 24, 2006. It also advised her: “[y]ou must
report to the OWCP any retirement income you receive from any Federal agency. This is
because a person who receives compensation benefits under the FECA is not permitted to receive
benefits under the Civil Service Retirement System (CSRS) or the Federal Employees’
Retirement System (FERS).” OWCP explained that if appellant was covered under FERS,
“OWCP must deduct from your compensation entitlement at least part of any [s]ocial [s]ecurity
[r]etirement benefits to which you are entitled based on age. This is because a portion of FERS
benefits is included in [s]ocial [s]ecurity retirement benefits. Therefore, advise OWCP
immediately upon filing for or receiving [s]ocial [s]ecurity [r]etirement benefits.” Appellant did
not sign and return the Form CA-1049, but acknowledged receipt of the form in an undated letter
received by OWCP on December 29, 2006 and by a telephone call on January 4, 2007.
In a July 17, 2007 letter, appellant’s first counsel, Martin Kaplan, Esquire, advised the
Social Security Administration (SSA) that appellant was receiving FECA compensation benefits.
He noted that FECA benefits may be reduced by SSA benefits attributable to appellant’s federal
service. Counsel requested calculation of appellant’s SSA benefits excluding her federal
employment to determine if there was a potential offset.
In an OWCP Form EN1032 signed by appellant on October 25, 2007, she responded that
she did not know if she had received SSA benefits as part of an annuity for federal service as
SSA had refused to answer this question.
By letter dated February 12, 2008, Mr. Kaplan informed OWCP that appellant had been
approved for disability retirement by the Office of Personnel Management (OPM). On
February 27, 2008 appellant elected to continue to receive FECA benefits effective

3

Appellant’s date of birth is May 24, 1941.

2

February 1, 2002. The election form noted that she understood she was not entitled to receive
FECA benefits and CSRS/FERS benefits concurrently except for a schedule award.
A notification of personnel action (Form SF-50) dated January 16, 2008 indicated that
appellant had voluntarily retired from the employing establishment effective January 25, 2008
and that she was covered under the FERS retirement plan.
On March 18, 2008 OPM advised OWCP that appellant had not been paid an annuity.
In a Form EN1032 signed by appellant on August 7, 2008, she indicated that she had not
received SSA benefits as part of an annuity for federal service. In an August 19, 2009 Form
EN1032, she indicated that she had received SSA benefits as part of an annuity for federal
service since her retirement at age 65.4 In EN1032 forms signed by appellant on May 29, 2010,
May 29, 2011, June 18, 2012, June 10, 2013, and June 3, 2014, she responded “NO” to the
question whether she received benefits from SSA as part of an annuity for federal service. By
signing the forms, appellant certified that all the statements made in response to the questions on
the form were true, complete, and correct to the best of her knowledge and belief. In May 5,
2010, May 18, 2011, May 30, 2012, May 1, 2013, and May 1, 2014 letters accompanying the
EN1032 forms, appellant was advised that she “must report to OWCP … any income or change
in income from Federally assisted disability or benefit programs” as this information would be
used to decide whether she was entitled to continue receiving these benefits or whether her
benefits should be adjusted.
In facsimile (fax) transmittals dated March 6 and April 24, 2014, OWCP requested SSA
to provide information regarding any dual benefits appellant may have received.
On July 8, 2014 SSA submitted a form which showed SSA rates with a FERS offset and
without a FERS offset from January 2007 through December 2013.
In a letter dated June July 17, 2014, OWCP informed appellant that she had been
receiving FERS/SSA dual benefits. It advised that the portion of SSA benefits earned as a
federal employee was part of the FERS retirement package and the receipt of FECA benefits and
federal retirement benefits concurrently was a prohibited dual benefit. Therefore, SSA benefits
which were attributable to the federal service of an employee covered under FECA must be
adjusted for the FERS portion of the SSA benefits and in compliance her compensation would be
offset. OWCP noted that $598.15 would be offset from her compensation every month. The
record contains an OWCP worksheet showing that appellant received a $54,341.91 overpayment
of compensation for the period January 1, 2007 through June 28, 2014 due to the failure to offset
SSA benefits.
By letter dated July 28, 2014, OWCP advised appellant that she should have received an
enclosed letter when she approached 62 years old. It enclosed July 28, 2014 letter which noted
that appellant was approaching 62 years old and informed her that FECA required a reduction in
benefits if she received retirement benefits from the SSA attributable to federal service. The

4

The Board notes that appellant was 66 years old on January 25, 2008, the effective date of her retirement.

3

letter advised her to contact OWCP promptly if she had been approved or received SSA
retirement benefits to avoid an overpayment of compensation.
On August 8, 2014 appellant submitted a signed appointment of representative appointing
her current counsel as her representative before OWCP.
In a June 9, 2015 notice, OWCP advised appellant of its preliminary determination that
she received a $54,341.91 overpayment of compensation for the period January 1, 2007 through
June 28, 2014 due to the failure to offset her FECA benefits for the SSA benefits she received.
Appellant was found at fault in creating the overpayment because she had not accurately reported
her receipt of SSA benefits as instructed by the December 20, 2006 CA-1049 letter and, thus, she
accepted payments that she knew or reasonably should have known were incorrect. OWCP
advised her that she could submit evidence challenging the fact, amount, or fault finding and
request waiver of recovery of the overpayment. Additionally, it informed her that, within 30
days, she could request a telephone conference, a final decision based on the written evidence, or
a prerecoupment hearing. OWCP requested that she complete an enclosed overpayment
recovery questionnaire (Form OWCP-20) and submit supporting financial documents.
By letter dated June 16, 2015, appellant, through counsel, requested a prerecoupment
hearing. At the February 10, 2016 prerecoupment hearing, counsel challenged the calculation of
the overpayment amount and finding of fault. He asserted that appellant was not “the same
reasonable person that [he and the hearing representative should be compared to] under the
circumstances” based on her accepted conditions and she was unable to understand the process
due to great weights placed on her from a mental and emotional standpoint. Counsel noted
appellant’s repeated assertions that she had not retired and did not accept FERS retirement
benefits as she had elected to receive OWCP benefits. He related that appellant did not have an
understanding of the issues in her case. Counsel contended that OWCP did not follow its
procedures as it failed to send the July 28, 2014 letter to appellant when she was at or
approaching age 62. He also contended that she did not understand the questions on the Form
EN1032, although she accurately responded in 2009 and 2011. Thus, counsel maintained that
the overpayment period should not have gone beyond 2009. He maintained that, while equally
valid arguments could be made for a finding with fault and without fault, appellant should be
given the benefit of the doubt.
Following the prerecoupment hearing, appellant submitted a completed Form OWCP-20
and various financial documents. On the Form OWCP-20 she reported total monthly income of
$6,471.74, which included $1,770.00 in SSA benefits and $4,701.74 in FECA benefits.
Appellant also reported monthly expenses of $6,406.83, which included $1,689.06 for rent or
mortgage including property tax, $931.30 for food, $275.00 for clothing, $400.00 for utilities,
$166.68 for long-term care insurance, $200.42 for auto insurance, $200.00 for veterinarian
services, $320.00 for housecleaning services, $150.00 for charities and gifts, $200.00 for
medicine and drugs, $100.00 for auto repairs and fuel, $100.00 for pet food, $30.64 for pet health
insurance, $344.77 for a car loan, $1,000.00 for credit cards, $594.00 for Terminix services,
$100.00 for medical concierge fees, and $75.00 homeowners’ insurance. She indicated the
following assets: $20.00 cash on hand, $3,478.65 in a checking account, $15,000.00 in a savings
account, $102,000.00 in investments, and $5,000.00 for other personal property and other funds
for a total of $125,498.65 in assets.

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By letter dated March 25, 2016, counsel contended that the overpayment amount was
based on an incorrect pay rate. He noted that the overpayment amount should have been based
on appellant’s pay rate for a GS-14 step 3 and not a GS-13.
In a March 31, 2016 decision, an OWCP hearing representative finalized the preliminary
determination that appellant received a $54,341.91 overpayment of compensation for the period
January 1, 2007 through June 28, 2014. She found that appellant was at fault in creating the
overpayment, thereby precluding waiver of recovery of the overpayment. With respect to
monthly expenses, the hearing representative found that some expenses were unreasonable or not
adequately documented. She found the reasonable and documented monthly expenses were:
$1,689.06 mortgage, $500.00 food, $100.00 clothing, and $300.00 utilities, $31.00 pet food,
$100.00 pet insurance, $225.00 household operations, supplies, furnishings, and equipment,
$100.00 gifts and charitable contributions, $150.00 medicine, $100.00 insurance premiums,
$100.00 automobile repairs and fuel, $166.88 long-term health insurance premiums, $50.00
Terminix, and $344.77 installment debt, or $3,957.00 per month. Appellant’s monthly income
was found to be $6,475.67 based on compensation and SSA benefits. The hearing representative
found that her monthly income exceeded her monthly expenses by $2,519.00. She also noted
appellant’s reported assets in the amount of $125,498.65. Consequently, the hearing
representative directed repayment of the overpayment by deducting $2,500.00 per 28 days from
appellant’s continuing compensation.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of 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 duty.5
Section 8116(d) of FECA requires that compensation benefits be reduced by the portion
of SSA benefits based on age or death that are attributable to federal service and that, if an
employee receives SSA benefits based on federal service, his or her compensation benefits shall
be reduced by the amount of SSA benefits.6
OWCP procedures provide that, while SSA benefits are payable concurrently with FECA
benefits, the following restrictions apply: in disability cases, FECA benefits will be reduced by
SSA benefits paid on the basis of age and attributable to the employee’s federal service.7 The
offset of FECA benefits by SSA benefits attributable to employment under FERS is calculated as
follows: where a claimant has received SSA benefits, OWCP will obtain information from SSA
on the amount of the claimant’s benefits beginning with the date of eligibility to FECA benefits.
SSA will provide the actual amount of SSA benefits received by the claimant/beneficiary. SSA
will also provide a hypothetical SSA benefit computed without the FERS covered earnings.
5

5 U.S.C. § 8102(a).

6

Id. at § 8116(d); see G.B., Docket No. 11-1568 (issued February 15, 2012); see also Janet K. George (Angelos
George), 54 ECAB 201 (2002).
7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.11 (February 1995); see
R.C., Docket No. 09-2131 (issued April 2, 2010).

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OWCP will then deduct the hypothetical benefit from the actual benefits to determine the amount
of benefits which are attributable to federal service and that amount will be deducted from FECA
benefits to obtain the amount of compensation payable.8
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained acute reaction to stress, irritable bowel
syndrome, PTSD, and migraines while in the performance of duty. The record supports that
appellant received FECA wage-loss compensation on the periodic rolls beginning December 24,
2006 and that she received SSA benefits beginning January 1, 2007. The portion of the SSA
benefits she earned as a federal employee was part of her FERS retirement package, and the
receipt of benefits under FECA and federal retirement benefits concurrently is a prohibited dual
benefit.9 Appellant’s FECA compensation was not offset until June 28, 2014. SSA notified
OWCP of the applicable SSA rates for that period and their effective dates. Based on these rates,
OWCP calculated the dual benefit appellant had received from January 1, 2007 to June 28, 2014,
which yielded an overpayment of compensation in the amount of $54,341.91. The record
includes a detailed overpayment worksheet explaining the overpayment calculation.
Thus, the Board finds that the evidence of record supports that appellant received a
$54,341.91 overpayment of compensation for the period January 1, 2007 to June 28, 2014.
On appeal, counsel disagrees with OWCP’s calculation of the overpayment amount.
However, he has failed to explain how the evidence of record establishes this assertion.
LEGAL PRECEDENT -- ISSUE 2
Under OWCP regulations, waiver of the recovery of an overpayment may be considered
only if the individual to whom it was made was not at fault in accepting or creating the
overpayment.10 The fact that the overpayment was the result of error by OWCP or another
government agency does not by itself relieve the individual who received the overpayment of
liability for repayment if the individual also was at fault for receiving the overpayment.11 Each
recipient of compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she received from OWCP are proper. The recipient must show good faith
and exercise a high degree of care in reporting events that may affect entitlement to or the
amount of benefits. A recipient who has done any of the following will be found to be at fault
with respect to 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; (2) failed to provide information
which he or she knew or should have known to be material; or (3) accepted a payment which he

8

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

9

5 U.S.C. § 8116(d)(2); see also R.C., Docket No. 14-1383 (issued December 5, 2014); see also FECA Bulletin
No. 97-9 (issued February 3, 1997).
10

20 C.F.R. § 10.433(a).

11

Id. at § 10.435(a).

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or she knew or should have known to be incorrect (this provision applies only to the overpaid
individual).12
With respect to whether an individual is without fault, section 10.433(b) of OWCP
regulations provides that whether or not OWCP determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those circumstances
and the individual’s capacity to realize that he or she is being overpaid.13
ANALYSIS -- ISSUE 2
The Board finds that appellant was at fault in creating the $54,341.91 overpayment of
compensation.
The record reflects that she accepted payments covering the period January 1, 2007 to
June 28, 2014 which she knew or should have known to be incorrect.14 Appellant was advised
on several occasions that receipt of SSA benefits would affect her entitlement to FECA
compensation, but she continued to accept full FECA benefits during the period January 1, 2007
to June 28, 2014 in addition to her SSA benefits. On December 20, 2006 a Form CA-1049 was
issued notifying appellant of her placement on the periodic rolls effective December 24, 2006
and advising her of her entitlement to ongoing disability payments. The Form CA-1049 further
clearly advised, “[y]ou must report to the OWCP any retirement income you receive from any
[f]ederal agency. This is because a person who receives compensation benefits under the FECA
is not permitted to receive benefits under the CSRS or FERS.” On December 29, 2006 and
January 4, 2007 appellant acknowledged receipt of the Form CA-1049. Moreover, in May 5,
2010, May 18, 2011, May 30, 2012, May 1, 2013, and May 1, 2014 letters accompanying
EN1032 forms, appellant was repeatedly advised that she must inform OWCP immediately if she
received benefits from federally-assisted disability or benefit programs as this would affect her
benefits from OWCP.
Despite being given notice that receipt of SSA benefits would reduce her entitlement to
FECA compensation, appellant continued to accept full FECA benefits during the period
January 1, 2007 to June 28, 2014. In addition, she also failed to provide information which she
knew or should have known to be material for a portion of the period January 1, 2007 to
June 28, 2014. In EN1032 forms signed on May 29, 2010, May 29, 2011, June 18, 2012,
June 10, 2013, and June 3, 2014, appellant responded “NO” to the question of whether she
received benefits from the SSA as part of an annuity for federal service, despite the fact that she
had received such benefits in the 15-month period preceding her signing of the form. By signing
the form, appellant certified that all of the statements made in response to the questions on the
form were true, complete, and correct to the best of her knowledge and belief.

12

Id. at § 10.433(a); see Kenneth E. Rush, 51 ECAB 116 (1999).

13

Id. at § 10.433(b).

14

Supra note 12.

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While appellant had proffered the argument that she was of diminished mental capacity,
there is no reasoned medical report of record which either diagnosed a cognitive deficit or
supports this argument.
The Board thus finds appellant at fault under the third standard, as she accepted
compensation which she knew she was not entitled to receive15 and, as such, recovery of the
overpayment of compensation in the amount of $54,341.91 may not be waived.
Counsel argued that OWCP procedures provide that, where equally valid arguments can
be made both for without fault and with fault, the benefit of the doubt should go to the
claimant.16 He contended that OWCP did not follow its procedures as it failed to send the
July 28, 2014 letter regarding the offset of appellant’s FECA benefits for receipt of SSA benefits
she received once she reached a certain retirement age. However, even though OWCP may have
been negligent in failing to send the July 28, 2014 letter to appellant, this does not excuse
appellant’s acceptance of compensation checks which she knew or should have been expected to
know were incorrect.17
On appeal, counsel generally challenges OWCP’s finding of fault and contends that
waiver of recovery of the overpayment should be considered, but offered no specific argument
relative to his contention.
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of Title 20 of the Code of Federal Regulations provide in pertinent part:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
soon as the error is discovered or his or her attention is called to the same. If no
refund is made, OWCP shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the
financial circumstances of the individual, and any other relevant factors, so as to
minimize any hardship.”18
The analysis that determines the amount of adjustment is substantially the same as that
used to determine waiver.19

15

5 U.S.C. § 8129(b); 20 C.F.R. § 10.433(a).

16

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.5
(June 2009).
17

Robert W. O’Brien, 36 ECAB 541, 547 (1985).

18

20 C.F.R. § 10.441(a); see Donald R. Schueler, 39 ECAB 1056, 1062 (1988).

19

See Howard R. Nahikian, 53 ECAB 406 (2002).

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ANALYSIS -- ISSUE 3
In the present case, appellant submitted a Form OWCP-20 and financial documents. The
hearing representative reviewed the evidence of record. With respect to expenses, she explained
that the reasonable and documented expenses were: $1,689.06 mortgage, $500.00 food, $100.00
clothing, and $300.00 utilities, $31.00 pet food, $100.00 pet insurance, $225.00 household
operations, supplies, furnishings, and equipment, $100.00 gifts and charitable contributions,
$150.00 medicine, $100.00 insurance premiums, $100.00 automobile repairs and fuel, $166.88
long-term health insurance premiums, $50.00 Terminix, and $344.77 installment debt per month,
or $3,957.00 per month. Appellant’s monthly income was reported at $6,475.67, based on
compensation and SSA benefits. The hearing representative concluded that appellant could
repay the overpayment by deducting $2,500.00 per month from her continuing compensation.
The Board finds that OWCP properly considered the relevant factors under 20 C.F.R.
§ 10.441. OWCP procedures indicate that the hearing representative should evaluate the
claimant’s financial information and establish the highest reasonable rate of repayment which
will collect the debt promptly and at the same time minimize any hardship to the claimant.20 The
hearing representative considered the financial information submitted and reasonably found the
overpayment of compensation could reasonably be recovered by deducting $2,500.00 from
continuing compensation every 28 days. The Board finds that OWCP properly determined the
recovery of the overpayment in this case.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $54,341.91 for the period January 1, 2007 to June 28, 2014.
The Board further finds that OWCP properly determined that appellant was at fault in the
creation of the overpayment of compensation, thereby precluding waiver of recovery of the
overpayment. The Board also finds that OWCP properly required repayment of the overpayment
by deducting $2,500.00 every 28 days from appellant’s continuing compensation payments.

20

Supra note 16 at Chapter 6.200.4(d) (June 2009).

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ORDER
IT IS HEREBY ORDERED THAT March 31, 2016 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 17, 2017
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.H., widower of B.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Burlington, NC, Employer
__________________________________________

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

Docket No. 20-1427
Issued: September 20, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 14, 2020 appellant filed a timely appeal from a June 19, 2020 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees ’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that the employee received an
overpayment of compensation in the amount of $36,479.87, for which she was without fault, as
she concurrently received Social Security Administration (SSA) age-related retirement benefits
and FECA wage-loss compensation for the period September 14, 2012 through October 15, 2016
without appropriate offset; and (2) whether OWCP properly denied waiver of recovery of the
overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board on a different issue.2 The facts and
circumstances of the case as set forth in the Board’s prior decision are incorporated herein by
reference. The relevant facts are set forth below.
On November 10, 2003 the employee, then a 57-year-old rural carrier, filed an
occupational disease claim (Form CA-2) alleging that factors of her federal employment including
casing and delivering mail caused a left shoulder rotator cuff tear and impingement. She noted on
her claim form that her retirement coverage was under the Federal Employees Retirement System
(FERS). OWCP accepted the claim for left shoulder impingement, left shoulder osteomyelitis ,
and left upper arm and forearm cellulitis. The employee stopped work on March 22, 2004. OWCP
paid her wage-loss compensation on the periodic rolls as of May 16, 2004.
On August 11, 2016 OWCP provided SSA with a FERS/SSA dual benefits calculation
form.
On September 29, 2016 SSA completed the dual benefits calculation form, which indicated
the employee’s SSA benefit rates with a FERS offset and without a FERS offset from
September 2012 through December 2015. Beginning September 2012, the SSA rate with FERS
was $899.20 and without FERS was $134.50. Beginning December 2012, the SSA rate with FERS
was $914.40 and without FERS was $136.70. Beginning December 2013, the SSA rate with FERS
was $928.10 and without FERS was $138.70. Beginning December 2014 and December 2015,
the SSA rate with FERS was $943.80 and without FERS was $141.00.
An October 13, 2016 FERS offset calculation worksheet noted each alleged period of
overpayment and provided calculations, which resulted in a total overpayment to the employee of
$38,952.40 during the period September 14, 2012 through October 15, 2016. This worksheet
reflected that from September 14 to November 30, 2012 the amount of the overpayment was
$1,966.37; from December 1, 2012 to November 30, 2013 the overpayment was $9,358.04; from
December 1, 2013 to November 30, 2014 the overpayment was $9,498.82; from December 1, 2014
to November 30, 2015 the overpayment was $9,660.07; and from December 1, 2015 until
October 15, 2016 the amount of the overpayment was $8,469.10.
In a preliminary determination dated October 18, 2016, OWCP informed the employee that
she had received an overpayment of compensation in the amount of $38,952.40 because the
SSA/FERS offset was not applied to payments for the period September 14, 2012 through
October 15, 2016. It determined that she was at fault in the creation of the overpayment because
she accepted a payment that she knew or reasonably should have known was incorrect. OWCP
requested that the employee submit a completed overpayment recovery questionnaire (Form
OWCP-20) to determine a fair repayment method. It requested financial information, including
copies of income tax returns, bank account statements, bills, pay slips, and any other records to
support income and expenses. OWCP advised the employee that it would deny waiver if she failed
to furnish the requested financial information within 30 days. It further provided her with an
overpayment action request form and notified her that within 30 days of the date of the letter she
2

Docket No. 10-2372 (issued September 30, 2011).

2

could request a telephone conference, a final decision based on the written evidence, or a
prerecoupment hearing.
On November 8, 2016 the employee contested OWCP’s finding that she was at fault in the
creation of the overpayment and requested waiver of recovery of the overpayment.
By decision dated December 16, 2016, OWCP finalized the October 18, 2016 preliminary
determination, finding that the employee had received an overpayment of compensation in the
amount of $38,952.40 because it had failed to offset her compensation payments by the portion of
her SSA age-related retirement benefits that were attributable to federal service. It further found
that she was without fault in the creation of the overpayment, but denied waiver of recovery of the
overpayment because the evidence of record failed to establish that recovery of an overpayment
would defeat the purpose of FECA or would be against equity and good conscience. OWCP
withheld $100.00 from the employee’s continuing compensation payments beginning
January 8, 2017.
In a memorandum of telephone call (Form CA-110) with an OWCP representative dated
October 10, 2019, appellant informed OWCP that the employee, his wife, had passed away that
morning.
By notice dated October 18, 2019, addressed to the employee’s estate, OWCP issued a
preliminary overpayment determination regarding the overpayment in the amount of $38,952.40
for the period September 14, 2012 through October 15, 2016 that was finalized by decision dated
December 16, 2016. It noted that it had requested that the Office of Personnel Management
(OPM) make appropriate deductions from any monies owed to appellant under the Civil Service
Retirement Act and that deductions would continue until the entire debt was recovered. OWCP
reminded him that interest at the rate of one percent annually retroactive to the date of the initial
demand letter, and any administrative costs incurred, may be applied to the debt, as well as
penalties at one percent per year for any portion of the debt that remained more than 90 days
delinquent. It advised that, if appellant wished to discharge the debt in one lump sum to avoid the
assessment of interest, he should send a check or money order to OWCP and include the
employee’s FECA claim number on the check. OWCP enclosed a record of appellant’s debt
history and payments from October 13, 2016 through October 14, 2019.
On October 18, 2019 OWCP contacted OPM to determine whether any OPM benefits were
payable to the employee’s estate. No response was received.
By letter to OWCP dated October 24, 2019, appellant noted that the employee, his wife,
had been found without fault and contested the fact of overpayment. He further stated that the
monthly recovery payment of $100.00 was not justified and the offsets to her compensation
payments since October 15, 2016 should be repaid to her estate. Appellant stated that the
overpayment determination, and offset to the employee’s continuing compensation were not in
equity and good conscience.
By letter to OWCP dated January 10, 2020, the employing establishment inquired
regarding recovery of delinquent debt payments, noting that the estate of the employee had not
made a payment toward the debt since October 12, 2019.

3

By decision dated June 19, 2020, addressed to the employee’s estate, OWCP finalized the
overpayment in the amount of $36,479.87 for the period September 14, 2012 through
October 15, 2016. It determined that, while the estate was without fault in the creation of the
overpayment, the circumstances of the case did not warrant waiver of recovery of the overpayment.
OWCP directed that the $36,479.87 overpayment be paid in full.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.3 Section 8116 limits the right of an employee to receive compensation. While an employee
is receiving compensation, he or she may not receive salary, pay, or remuneration of any type from
the United States.4
Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount
of compensation by the amount of SSA benefits that are attributable to federal service of the
employee.5 FECA Bulletin No. 97-09 provides that FECA compensation have to be adjusted for
the FERS portion of SSA benefits because the portion of the SSA benefit earned as a federal
employee is part of the FERS retirement package, and the receipt of FECA benefits and federal
retirement concurrently is a prohibited dual benefit. 6
OWCP’s procedures for recovery from a deceased debtor’s estate provide that, if the
claimant recently passed away, it should take prompt action because creditors who have not
properly asserted a claim before the estate is closed are generally precluded from any recovery. 7
Thus, it should refer the debt to the financial management system (FMS) for offset of the
deceased claimant’s last federal tax refund under the Treasury’s Offset Program (TOP). 8 OWCP
has a special profile with FMS under TOP for the collection of these specific estate debts. The
claims examiner should follow the referral procedures set forth in Chapter 6.500.12,9 including

3

5 U.S.C. § 8102(a).

4

Id. at § 8116.

5

20 C.F.R. § 10.421(d); see S.O., Docket No. 18-0254 (issued August 2, 2018); L.J., 59 ECAB 264 (2007).

6

FECA Bulletin No. 97-09 (February 3, 1997); see R.D., Docket No. 19-1598 (issued April 17, 2020); see R.R.,
Docket No. 19-0104 (issued March 9, 2020).
7

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Debt Liquidation, Chapter 6.500.15
(September 2018).
8

31 C.F.R. § 285.2; id. at Chapter 6.500.15(g)(1)-(7) (September 2018). See also R.B. (J.B.), Docket No. 19-0700
(issued March 16, 2021); W.J. (E.J.), Docket No. 18-1035 (issued July 9, 2019).
9

Supra note 7 at Chapter 6.500.12 (September 2018).

4

sending the complete referral package to the national office for final review and forwarding to the
FMS.10
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision.
By notice dated October 18, 2019, addressed to the employee’s estate, OWCP issued a
preliminary overpayment determination that the employee had received an overpayment of
compensation in the amount of $38,952.40 for the period September 14, 2012 through October 15,
2016 that had previously been finalized by decision dated December 16, 2016. It noted that it had
requested that OPM make appropriate deductions from any monies owed to appellant under the
Civil Service Retirement Act and that deductions would continue until the entire debt was
recovered. On October 18, 2019 OWCP contacted OPM to determine whether any OPM benefits
were payable to the employee’s estate. Although no response was received, by decision dated
June 19, 2020, addressed to the employee’s estate, OWCP finalized an overpayment of
compensation in the amount of $36,479.87 for the period September 14, 2012 through
October 15, 2016. It determined that the estate was without fault in the creation of the
overpayment, but denied waiver of recovery of the overpayment and directed that the $36,479.87
overpayment be paid in full.
OWCP’s procedures provide for recovery from a deceased debtor’s estate.11 The
procedures specifically require that, if the claimant recently passed away, OWCP should refer the
debt to the FMS for offset of the deceased claimant’s last federal tax refund under the TOP.12
OWCP has a special profile with FMS under TOP for the collection of these specific estate debts.
The claims examiner should follow the referral procedures set forth in Chapter 6.500.12, 13
including sending the complete referral package to the national office for final review and
forwarding to the FMS. 14
Although OWCP attempted to contact OPM, the evidence of record does not substantiate
that actions OWCP has taken to recover the overpayment debt include referral to FMS for
appropriate offset under the TOP prior to taking overpayment actions against the employee’s
estate. The Board, therefore, cannot make an informed decision regarding the fact of overpayment
and the amount to be collected against the estate. 15 The case shall therefore be remanded for

10

Supra note 7 at Chapter 6.500.15(e).

11

Supra note 7.

12

Supra note 8.

13

Supra note 9.

14

Supra note 10.

15

See R.B. (J.B.) and W.J. (E.J.), supra note 8.

5

OWCP to follow all procedures as outlined in Chapter 6.500.15. 16 Following this and any other
further development as deemed necessary, OWCP shall issue a de novo decision.17
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 19, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded to OWCP for further proceedings
consistent with this decision of the Board.
Issued: September 20, 2021
Washington, DC

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

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

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

16

See supra note 7; D.U., Docket No. 20-0594 (issued June 4, 2021).

17

In light of the Board’s disposition of Issue 1, Issues 2 is rendered moot.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Newark, NJ, Employer
__________________________________________

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

Docket No. 21-0968
Issued: March 18, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 10, 2021 appellant filed a timely appeal from a March 18, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 2
ISSUE
The issue is whether appellant has met her burden of proof to establish a right wrist
condition causally related to the accepted November 23, 2020 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 18, 2021 decision, OWCP received additional evidence and appellant
submitted additional evidence on appeal. However, the Board’s Rules of Procedure provides: The Board’s review of
a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence
not before OWCP will not be considered by the Board for the first time on appeal. 20 C.F.R. § 501.2(c)(1). Thus, the
Board is precluded from reviewing this additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On November 30, 2020 appellant, then a 49-year-old carrier technician, filed a traumatic
injury claim (Form CA-1) alleging that on November 23, 2020 she injured her right hand/wrist
when a large parcel slipped from her hand and caused her hand to bend backward while in the
performance of duty. On the reverse side of the claim form, the employing establishment
acknowledged that her injury had occurred in the performance of duty. It also indicated that
appellant had previously sustained a nonoccupational hand injury. Appellant stopped work on the
date of injury.
In a November 23, 2020 statement, appellant noted that she injured her right hand at work
earlier that day when she was lifting a large box off of a skid, which was at least two feet off the
floor. She explained that the box slipped from her hand, causing her hand to bend backward, which
caused pain in her wrist. Appellant noted that she yelled out in pain and that her supervisor came
to check on her. She indicated that she drafted a statement that would be seeking medical attention.
In a separate statement of even date, appellant noted that when she was lifting a large parcel, it
slipped and injured her right wrist.
In an undated witness statement, C.D., appellant’s supervisor, noted that, on November 23,
2020 at approximately 6:30 p.m., she saw appellant return to the office with a large parcel on a
skid. She stated that she witnessed appellant yell out in pain and saw the parcel was no longer on
the skid. C.D. asserted that appellant was holding her arm and notified her that she had tried
moving the parcel to the floor when it slipped out of her hands and hurt her right wrist. Appellant
also informed C.D. that she previously had surgery on the same wrist, which was the reason why
she was currently on restrictions. C.D. noted that a coworker helped appellant write her statement
before she signed it.
On November 23, 2020 the employing establishment executed an authorization for
examination and/or treatment (Form CA-16).
In a November 24, 2020 medical report, Dr. Paul Saccone, a cosmetic, plastic, and
reconstructive surgeon, reported that a heavy box slipped onto appellant’s right hand and wrist,
and bent them backward at work on November 23, 2020. Appellant complained that she
experienced pain in her wrist when she moved it. Dr. Saccone conducted a physical examination
and diagnosed a right wrist sprain. He noted that her right hand and wrist showed some mild
swelling, but no ecchymosis. Dr. Saccone also noted that appellant had decreased flexion and
extension of her wrist. He indicated that she previously underwent a carpal tunnel release on
September 24, 2018. In a disability certification of even date, Dr. Saccone noted that appellant
was totally incapacitated and required an x-ray to further determine the extent of her injury.
A November 25, 2020 x-ray of the right wrist revealed no fracture or dislocation. In an
attending physician’s report, Part B of the Form CA-16, also dated November 25, 2020,
Dr. Saccone again noted that a heavy box slipped onto appellant’s right hand and wrist, bending
them backward, at work on November 23, 2020. He reported that her right wrist was swelling
with decreased flexion and extension. Dr. Saccone diagnosed right wrist sprain and checked a box
marked “Yes,” indicating that appellant’s condition was caused or aggravated by the described
employment activity. He indicated that she was unable to work.

2

In a December 1, 2020 medical report, Dr. Saccone reiterated his findings and diagnosed
right wrist sprain and pain. In a disability certification of even date, he released appellant to return
to work on December 21, 2020, but indicated that her restrictions would be reevaluated on
December 15, 2020.
In a December 15, 2020 medical report, Dr. Saccone noted that appellant still experienced
pain and cramping in her right wrist. He conducted a physical examination and reiterated his
diagnoses. In a prescription slip of even date, Dr. Saccone prescribed occupational therapy and
again diagnosed a right wrist sprain.
Appellant underwent occupational therapy treatment on December 21 and 23, 2020.
In a January 8, 2021 medical report, Dr. Saccone reported that appellant was feeling better
since she began occupational therapy and that she wanted to return to work. He reiterated his
findings and diagnoses. In a prescription slip of even date, Dr. Saccone again prescribed
occupational therapy. In a disability certification of even date, he indicated that appellant could
return to work on January 9, 2021 with restrictions.
An undated report of work status (Form CA-3) completed by the employing establishment
indicated that appellant returned to full-time modified-duty work with restrictions on
January 9, 2021.
In a February 5, 2021 medical report, Dr. Saccone noted that appellant was doing well after
undergoing occupational therapy. He reiterated his findings and diagnoses. In a prescription slip
of even date, Dr. Saccone recommended that appellant continue occupational therapy. In a
disability certification of even date, he noted that appellant returned to work on January 9, 2021
with restrictions.
In a February 11, 2021 development letter, OWCP requested that appellant submit
additional medical evidence in support of her claim. It afforded her 30 days to respond. No
additional evidence was submitted.
By decision dated March 18, 2021, OWCP denied appellant’s traumatic injury claim,
finding that the medical evidence of record was insufficient to establish causal relationship
between the accepted November 23, 2020 employment incident and her diagnosed right wrist
sprain.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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, 4 that an injury was sustained in the performance of duty as alleged,
3

Supra note 1.

4

S.C., Docket No. 18-1242 (issued March 13, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

3

and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury. 5 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. 6
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. 7 There are two
components that must be considered in conjunction with one another. The first component is
whether the employee actually experienced the employment incident that allegedly occ urred.8 The
second component is whether the employment incident caused a personal injury. 9
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 10 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment incident must be based on a
complete factual and medical background. 11 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition, and the
accepted employment incident. 12
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a right wrist
condition causally related to the accepted November 23, 2020 employment incident.
In Part B of the Form CA-16, attending physician’s report, dated November 25, 2020,
Dr. Saccone diagnosed a right wrist sprain indicated by checking a box marked “Yes” that the
5

T.H., Docket No. 18-1736 (issued March 13, 2019); J.M., Docket No. 17-0284 (issued February 7, 2018); R.C.,
59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
6

T.E., Docket No. 18-1595 (issued March 13, 2019); K.M., Docket No. 15-1660 (issued September 16, 2016); L.M.,
Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
7

S.S., Docket No. 18-1488 (issued March 11, 2019); T.H., 59 ECAB 388, 393-94 (2008).

8

E.M., Docket No. 18-1599 (issued March 7, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

9

E.M., id.; John J. Carlone, 41 ECAB 354 (1989).

10

S.S., supra note 7; Robert G. Morris, 48 ECAB 238 (1996).

11

C.F., Docket No. 18-0791 (issued February 26, 2019); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

12

Id.

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See
R.D., Docket No. 18-1551 (issued March 1, 2019).

4

condition was caused or aggravated by an employment activity. The Board has held that a report
that addresses causal relationship with a checkmark, without medical rationale explaining how the
employment incident caused the alleged injury, is of diminished probative value and insufficient
to establish causal relationship. 14 Dr. Saccone did not provide any rationale in support of his
opinion. This report is, therefore, of diminished probative value and insufficient to establish
appellant’s claim.
In medical reports dated November 24, and December 1 and 15, 2020, and January 8 and
February 5, 2021, Dr. Saccone reported that a heavy box slipped onto appellant’s right hand and
wrist, bending it backward, at work on November 23, 2020. He conducted a physical examination
and consistently diagnosed a right wrist sprain. Similarly, in his December 15, 2020 prescription
slip, he diagnosed a right wrist sprain. However, Dr. Saccone did not address causation in his
reports. The Board has held that medical evidence that does not offer an opinion regarding the
cause of an employee’s condition is of no probative value on the issue of causal relationship. 15
Moreover, the Board has consistently held that complete medical rationalization is particularly
necessary when there is a preexisting condition involving the same body part, and has required
medical rationale differentiating between the effects of the work-related injury and the preexisting
condition in such cases. 16 For these reasons, these reports are insufficient to establish appellant’s
claim.
OWCP received disability certifications and prescription slips from Dr. Saccone dated
November 24 and December 1, 2020, and January 8 and February 5, 2021. However, Dr. Saccone
did not offer a medical diagnosis or provide an opinion as to whether a diagnosed condition was
causally related to the accepted employment incident. The Board has held that medic al evidence
that does not include a firm diagnosis or an opinion regarding the cause of an employee’s condition
is of no probative value on the issue of causal relationship. 17 This evidence is, therefore,
insufficient to establish appellant’s claim.
Appellant also submitted occupational therapy reports dated December 21 and 23, 2020,
and January 20, 2021. These documents do not constitute competent medical evidence because
an occupational therapist is not considered a “physician” as defined under FECA. 18 Consequently,

14

D.S., Docket No. 21-0037 (issued May 27, 2021); S.C., Docket No. 20-0327 (issued May 6, 2021); A.R., Docket
No. 19-0465 (issued August 10, 2020); Gary J. Watling, 52 ECAB 278 (2001).
15

See O.N., Docket No. 20-0902 (issued May 21, 2021); R.C., Docket No. 19-0376 (issued July 15, 2019).

16

Supra note 13. See also J.H., Docket No. 20-1645 (issued August 11, 2021).

17

R.Q., Docket No. 20-0585 (issued September 10, 2021); S.C., Docket No. 20-0492 (issued May 6, 2021).

18

Section 8101(2) of FECA provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law. 5
U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See supra note 13 at Chapter 2.805.3a(1) (January 2013); David P. Sawchuk,
57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical therapists are not
competent to render a medical opinion under FECA); S.J., Docket No. 20-1061 (issued December 22, 2020); see also
J.R., Docket No. 19-0812 (issued September 29, 2020) (an occupational therapist is not considered a physician under
FECA).

5

their medical findings and/or opinions will not suffice for purposes of establishing entitlement to
compensation benefits. 19
Lastly, appellant submitted a November 25, 2020 x-ray of the right wrist. The Board has
explained, however, that diagnostic studies, standing alone, lack probative value as they do not
address whether the employment incident caused any of the diagnosed conditions. 20 Thus, this
report is also insufficient to establish appellant’s claim.
As appellant has not submitted rationalized medical evidence establishing causal
relationship between her right wrist condition and the accepted November 23, 2020 employment
incident, the Board finds that she has not met her burden of proof to establish her claim. 21
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a right wrist
condition causally related to the accepted November 23, 2020 employment incident.

19

Id.

20

M.B., Docket No. 19-1638 (issued July 17, 2020); T.S., Docket No. 18-0150 (issued April 12, 2019).

21

The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization
may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed.
The form creates a contractual obligation, which does not involve the employee direct ly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); S.P., Docket No. 191904 (issued September 2, 2020); J.G., Docket No. 17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB
608 (2003).

6

ORDER
IT IS HEREBY ORDERED THAT the March 18, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 18, 2022
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Newark, NJ, Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-811
Issued: August 21, 2008

Case Submitted on the Record

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

JURISDICTION
On September 25, 2007 appellant filed a timely appeal from an October 25, 2007 merit
decision of the Office of Workers’ Compensation Programs terminating authorization for
compensation and medical benefits and a January 11, 2008 decision denying her request for
reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUES
The issues are: (1) whether the Office has met its burden of proof to terminate
appellant’s entitlement to compensation and medical benefits effective October 25, 2007, on the
grounds that her accepted lumbar strain/sprain and right knee ligament tear conditions had
resolved; and (2) whether the Office properly refused to reopen appellant’s case for further
review of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY
On June 23, 2005 appellant, a 42-year-old transportation security officer, sustained an
injury to her back and right knee while walking under a baggage belt. Her claim was accepted
for lumbar sprain/strain and right knee ligament tear and she was placed on the periodic rolls.1
In a report dated February 16, 2006, Dr. Jonathan H. Lustgarten, a Board-certified
neurological surgeon, diagnosed lumbar strain and sprain, noting that appellant had experienced
chronic back pain since her work-related accident. On February 27, 2006 Dr. Bernard P.
Murphy, a Board-certified orthopedic surgeon, diagnosed lumbosacral sprain and right knee
sprain, with a tear of the posterior horn of the medial meniscus. He opined that she needed lower
back support and recommended work restrictions which precluded heavy lifting of luggage.
The Office referred appellant to Dr. I. Ahmad, a Board-certified orthopedic surgeon, for a
second opinion examination and an opinion as to whether she had any continuing residuals or
disability related to her accepted injury. In a report dated August 29, 2006, Dr. Ahmad opined
that appellant’s work-related condition had resolved. He diagnosed lumbar sprain; right knee
sprain; and preexisting degenerative changes and arthritis of the right knee and of the lumbar
spine. Dr. Ahmad opined that appellant was able to work full time and that there was no need
for further treatment, therapy, tests, injections or surgery. In a letter dated October 30, 2006,
James Muirhead informed the Office that he represented appellant in her claim before the Office
and requested a copy of the entire case file. The record contains a copy of an agreement dated
May 8, 2006, received by the Office on November 6, 2006, wherein appellant authorized
Mr. Muirhead to represent her in her traumatic injury claim. On January 4, 2007 it forwarded a
copy of the entire case file to appellant’s representative.
The Office found a conflict in medical opinion between appellant’s treating physicians
and its second opinion physician. By letter dated February 1, 2007, it informed appellant that
she was being referred to Dr. Robert Dennis, a Board-certified orthopedic surgeon, in order to
resolve the conflict. The record does not reflect that a copy of the Office’s February 1, 2007
letter was sent to appellant’s representative. On February 20, 2007 appellant was examined by
Dr. Dennis. In a report of that date, Dr. Dennis opined that appellant had fully recovered from
her accepted conditions and was able to return to full-time unrestricted employment. In a letter
dated August 14, 2007, appellant’s representative objected to the referee examination, stating
that the Office had not notified him of the examination and that he was not aware that the
examination had occurred until August 6, 2007.
On August 28, 2007 the Office issued a notice of proposed termination of compensation
and medical benefits, based on Dr. Dennis’ February 20, 2007 report, which represented the
weight of the medical evidence. Appellant was advised to submit additional evidence or
argument within 30 days. On September 11, 2007 her representative objected to the proposed
termination, contending that the recommendation to terminate benefits was improperly based on

1

The Office’s October 25, 2007 decision reflects that appellant returned to full-time employment on March 5,
2000 and was therefore not in receipt of compensation benefits when her benefits were terminated by the Office on
October 25, 2007.

2

Dr. Dennis’ examination, of which he was not notified. On October 25, 2007 the Office
finalized appellant’s compensation and medical benefits effective that date.
On December 17, 2007 appellant, through her representative, requested reconsideration
of the Office’s October 25, 2007 decision. In support of the request, she submitted a
December 2, 2007 report from Dr. Nasser Ani, a Board-certified orthopedic surgeon, who opined
that she suffered from work-related degenerative disc disease of the lumbar spine. By decision
dated January 11, 2008, the Office denied appellant’s request for reconsideration, finding that the
evidence submitted was insufficient to warrant merit review.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened in order to justify termination or modification of compensation benefits.2 It
may not terminate compensation without establishing that the disability has ceased or that it is no
longer related to the employment.3 The Office’s burden of proof includes the necessity of
furnishing rationalized medical opinion evidence based on a proper factual and medical
background.4 Furthermore, the right to medical benefits for an accepted condition is not limited
to the period of entitlement for disability compensation.5 To terminate authorization for medical
treatment, the Office must establish that appellant no longer has residuals of an employmentrelated condition which require further medical treatment.6
Section 8123(a) of the Federal Employees’ Compensation Act provides in pertinent part
that, if there is disagreement between the physician making the examination for the United States
and the physician of the employee, the Secretary shall appoint a third physician who shall make
an examination.7 When there are opposing reports of virtually equal weight and rationale, the
case must be referred to an impartial medical specialist, pursuant to section 8123(a) of the Act, to
resolve the conflict in the medical evidence.8
The Office procedure manual provides that, once it has been determined that an impartial
medical examination is necessary in order to resolve a conflict, the Office’s medical management
assistant will contact the physician directly and make the appointment for examination, then
notify the claimant and her representative of the existence of a conflict; the name and address of
the physician; any request(s) to forward x-rays, electrocardiograms, etc. to the specialist; copies

2

See Beverly Grimes, 54 ECAB 543 (2003).

3

Id.

4

James M. Frasher, 53 ECAB 794 (2002).

5

See Beverly Grimes, supra note 2. See also Franklin D. Haislah, 52 ECAB 457 (2001).

6

See Beverly Grimes, supra note 2.

7

5 U.S.C. § 8123(a).

8

William C. Bush, 40 ECAB 1064, 1075 (1989).

3

of Forms SF-1012, SF-1012A and instructional Form CA-77 to claim travel expenses; and a
warning that benefits may be suspended for failure to report for examination.9
Office regulations provide that a properly appointed representative who is recognized by
the Office may make a request or give direction to the Office regarding the claims process,
including a hearing. This authority includes presenting or eliciting evidence, making arguments
on the facts or the law and obtaining information from the case file, to the same extent as the
claimant.10 Any notice requirement contained in the regulations or the Act11 is fully satisfied if
served on the representative and has the same force and effect as if sent to the claimant.12 The
Board has held that decisions under the Act are not deemed to have been properly issued unless
both appellant and the authorized representative have been sent copies of the decision.13
ANALYSIS
The Board finds that the Office has not met its burden of proof to terminate appellant’s
compensation and medical benefits on the ground that her accepted back and knee conditions had
resolved by October 25, 2007. Appellant’s claim was accepted for a lumbar sprain/strain and
right knee ligament tear. The Office determined that a conflict existed between appellant’s
treating physicians, Dr. Lustgarten and Dr. Murphy, and the second opinion physician,
Dr. Ahmad, regarding the nature and extent of her employment-related condition and disability.
The Office referred appellant to Dr. Dennis for resolution of the conflict. Based on Dr. Dennis’
opinion, the Office terminated appellant’s entitlement to compensation benefits and medical
treatment. However, the Office failed to follow its own procedures in selecting the impartial
medical examiner. Therefore, Dr. Dennis cannot serve as an impartial medical examiner.
Where there exists a conflict of medical opinion and the case is referred to an impartial
specialist for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4(d).

10

20 C.F.R. § 10.700(c).

11

5 U.S.C. §§ 8101-8193.

12

20 C.F.R. § 10.700 (c); see also Sara K. Pearce, 51 ECAB 517, 518 (2000).

13

See Travis L. Chambers, 55 ECAB 138 (2003) (holding that 20 C.F.R. § 10.127 requires that a copy of an
Office decision be sent to the authorized representative and that any other interpretation of the language of the
regulation would be inconsistent with the clear language of its initial provisions). See also Federal (FECA)
Procedure Manual, Part 2 -- Claims, Communications, Chapter 2.300.4e (February 2000) (where the employee has
an attorney or other legal representative, the original of any letter to the claimant should be sent to that person, with
a copy to the claimant). Similarly, see Federal (FECA) Procedure Manual, Part 2 -- Claims, Development of Claims,
Chapter 2.800.3c(1) (April 1993) (the Office must provide information about procedures involved in establishing a
claim, including detailed instructions for developing the required evidence to all interested parties the claimant, the
employing establishment and the representative, if any); Sara K. Pearce, supra note 12 at 518-19 (holding that
failure to notify appellant’s authorized representative effectively denied appellant the opportunity to have [the
representative] assist her in remedying the deficiencies of her claim and the full opportunity to exercise her appeal
rights in a timely fashion); and Thomas H. Harris, 39 ECAB 899, 899-900 (1988).

4

well rationalized and based upon a proper factual background, is entitled to special weight.14
Owing to the special weight accorded to these opinions, the Office’s procedure manual sets out
certain specific requirements.
The Office’s procedure manual provides, in pertinent part, that when an employee is
referred for a referee (impartial) medical examination pursuant to section 8123(a) of the Act, the
following specific information must be provided to the claimant and to the claimant’s
representative:
“Information [s]ent to [c]laimant: The [Office] will contact the physician directly
and make an appointment for examination, then notify the claimant and
representative of the following -(1) The existence of a conflict in the medical evidence and the specific
nature of the conflict. Notification that the examination is being arranged
under the provisions of 5 U.S.C. § 8123 will give the claimant an
opportunity to raise any objection to the selected physician prior to
examination.
(2) The name and address of the physician to whom claimant is being
referred as well as the date and time of the appointment.”15
In this case, the Office failed to notify appellant’s representative that a conflict had been
created or of the selection of the impartial medical examiner. Consequently, he was deprived of
the opportunity to participate in the selection process or to present any objections to the selection
of Dr. Dennis.16 The record reflects that Mr. Muirhead was properly authorized to represent
appellant in this claim and that the Office recognized his representation, as evidenced by the fact
that the Office sent a copy of the entire case file to him on January 4, 2007. The Office was
required to notify appellant’s representative of the selection of Dr. Dennis as the impartial
medical examiner.17 However, although appellant was notified of and attended, the February 20,
2007 examination, her representative was not notified of the examination and did not become
aware of it until several months after it occurred. Accordingly, Dr. Dennis cannot serve as an

14

Aubrey Belnavis, 37 ECAB 206, 212 (1985). 5 U.S.C. § 8123(a) states, in pertinent part “[i]f there is a
disagreement between the physician making the examination for the United States and the physician of the
employee, the Secretary shall appoint a third physician who shall make an examination.” See, e.g., William C. Bush,
supra note 8.
15

Federal (FECA) Procedure Manual, supra note 9.

16

See Sara K. Pearce, supra note 12.

17

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4(d). See also
Federal (FECA) Procedure Manual, Part 2 -- Claims, Communications, Chapter 2.300.4e (February 2000) (where
the employee has an attorney or other legal representative, the original of any letter to the claimant should be sent to
that person, with a copy to the claimant).

5

impartial medical examiner.18 The Board finds that there remains an unresolved conflict in the
medical evidence. In view of the foregoing, the Office has not met its burden of proof to
terminate appellant’s compensation benefits.
CONCLUSION
The Board finds that the Office has not met its burden of proof to terminate appellant’s
entitlement to compensation and medical benefits.19
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 25, 2007 is reversed.
Issued: August 21, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

18

See Henry J. Smith, Jr., 43 ECAB 524 (1992) (where appellant was not notified of the selection of the impartial
medical examiner, the physician could not serve as the impartial medical examiner in the case). Cf E.S., Docket No.
07-2253, issued February 12, 2008 (Where a decision of an Office hearing representative found that a conflict
existed in the medical evidence which required referral of appellant to an impartial medical specialist, appellant and
her representative were adequately appraised of the decision to refer appellant for an impartial medical
examination).
19

Given the Board’s finding as to the first issue, the second issue is moot.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL AVIATION ADMINISTRATION,
Durango, CO, Employer
__________________________________________

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

Docket No. 18-0776
Issued: November 9, 2018

Case Submitted on the Record

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

JURISDICTION
On February 28, 2018 appellant, through counsel, filed a timely appeal from a January 26,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the 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 her burden of proof to establish more than 13 percent
permanent impairment of her right upper extremity for which she previously received schedule
award compensation.
FACTUAL HISTORY
On June 10, 2013 appellant, then a 57-year-old transportation security officer supervisor,
filed an occupational disease claim (Form CA-2) alleging that she sustained an aggravation of her
preexisting carpal tunnel syndrome of the right hand and wrist while in the performance of her
federal employment duties. OWCP assigned the present claim, OWCP File No. xxxxxx116. On
September 27, 2013 it accepted the claim for carpal tunnel syndrome of the right hand.3
On May 23, 2013 appellant underwent nerve conduction velocity (NCV) testing which
demonstrated that the right median motor distal latency was at the slow end of normal, indicating
mild residual effective from her previous carpal tunnel surgery.
In a note dated July 24, 2013, Dr. Ryan Naffziger, a Board-certified plastic surgeon,
recommended additional right carpal tunnel surgical intervention. On September 5, 2013 he
performed the right carpal tunnel open release and right median nerve decompression of
appellant’s forearm or pronator release. Dr. Naffziger found compression of the median nerve at
the leading edge of the flexor aponeurosis.
Appellant underwent additional NCV studies on June 30, 2014 which continued to
demonstrate mild sensory median neuropathy at the right wrist and chronic inactive denervation
of the promator teres muscle which was due to prior median entrapment.
On June 7, 2016 appellant filed a schedule award claim (Form CA-7). In a development
letter dated July 5, 2016, OWCP requested that she submit additional medical evidence
establishing her schedule award claim. It afforded appellant 30 days for a response.
Dr. Jack L. Rook, a Board-certified physiatrist, examined appellant on July 20, 2016. He
reviewed her medical history including her previous diagnosis of bilateral carpal tunnel syndrome,
and resulting surgeries in 2007. Dr. Rook reported appellant’s increasing right wrist pain and
diagnosis of aggravation of right carpal tunnel syndrome in 2013 as well as her 2013 surgery. He
performed a physical examination and found no muscle atrophy on the thenar eminence, but
significant weakness of the right hand intrinsic musculature. Dr. Rook reported muscle strength
of 4/5 in the abductor pollicis brevis, in pinch strength, and grip strength. He found a positive
3

Appellant had prior claim before OWCP. On February 5, 2007 appellant filed an occupational disease claim (Form
CA-2) alleging that she developed carpal tunnel syndrome on the right due to factors of her federal employment as a
security screener including lifting, inspecting, and carrying bags averaging 40 pounds. OWCP assigned that claim,
File No. xxxxxx025. Appellant underwent bilateral carpal tunnel release surgeries on March 27, 2007. OWCP
accepted the claim for right carpal tunnel syndrome on April 26, 2007. On May 31, 2007 it expanded acceptance of
appellant’s claim to include left carpal tunnel syndrome. By decision dated December 2, 2008, OWCP granted her a
schedule award for 13 percent permanent impairment of her right upper extremity. OWCP File Nos. xxxxxx025 and
xxxxxx116 have been administratively combined, with the latter designated the master file.

2

Tinel’s sign on the right transverse carpal ligament, positive pronator compression sign, and
diminished pinprick sensation in the right hand in the median nerve distribution, but no evidence
of allodynia. Dr. Rook diagnosed right carpal tunnel syndrome and right pronator syndrome. He
indicated that he was providing an impairment rating for median nerve compression at the level of
the pronator mass in accordance with the sixth edition of the A.M.A., Guides. Dr. Rook found
that appellant had mild motor and sensory defects.4 He determined that she had five percent
permanent impairment of the median nerve above midforearm in accordance with the diagnosisbased impairment (DBI) methodology.5 Dr. Rook then related that appellant had a functional
history grade modifier of 4, based on her QuickDASH (Disabilities of the Arm, Shoulder, and
Hand) score of 82, and clinical studies grade modifier of 1, he applied the net adjustment formula
of the A.M.A., Guides and reached an impairment rating of grade E or 10 percent impairment of
the right upper extremity. He repeated this process for her mild motor deficit, to reach an
additional 12 percent permanent impairment of the right upper extremity. Dr. Rook combined
appellant’s previous award for 13 percent permanent impairment due to carpal tunnel syndrome,
with his two impairment ratings for pronator syndrome of 21 percent permanent impairment to
reach a total right upper extremity permanent impairment of 31 percent.
OWCP’s medical adviser reviewed Dr. Rook’s report on February 19, 2017 and found it
problematic for several reasons. He noted that Dr. Rook had inappropriately used a functional
history grade modifier of 4 in conjunction with other modifiers of 1. Further, that Dr. Rook’s
impairment rating did not comport with the requirements of the A.M.A., Guides as he failed to use
Table 15-23 of the A.M.A., Guides which addresses entrapment/compression neuropathy
impairment.6 The medical adviser recommended a second opinion evaluation.
On March 2, 2017 OWCP referred appellant, a statement of accepted facts, and a list of
questions, for a second opinion evaluation with Dr. Thomas P. Moore, a Board-certified
orthopedic surgeon.
Dr. Moore completed a report on March 30, 2017. He reviewed appellant’s history of
injury and medical treatment including two right carpal tunnel releases, one left carpal tunnel
release, and right elbow surgery. On physical examination Dr. Moore found right-sided atrophy
of the thenar eminence, and thumb index webspace musculature. He also noted appellant’s report
on pain with palpation on the thenar eminences, carpal, and volar radiocarpal regions. Appellant
exhibited negative Tinel’s sign and Phalen’s test. She also demonstrated decreased grip strength
and decreased strength in the intrinsic muscles of her right hand. Appellant’s neurological
examination was normal. Dr. Moore diagnosed right carpal tunnel syndrome and attributed this
condition to her original 2007 employment injury. He found that appellant had reached maximum
medical improvement on March 4, 2015 and concluded that she could not return to work in her
date-of-injury position due to objective findings of weakness and atrophy.

4

A.M.A., Guides 425, Table 15-14.

5

Id. at 437, Table 15-21.

6

Id. at 449, Table 15-23.

3

Dr. Moore provided an impairment rating utilizing Table 15-23, Entrapment/Compression
neuropathy of the A.M.A., Guides.7 He noted that appellant’s NCV study on February 8, 2007
demonstrated both sensory and motor decreased conduction. Dr. Moore concluded that this test
result was a grade modifier of 1.8 He noted that appellant had constant symptoms which resulted
in a grade modifier of 3 under history. Dr. Moore found that her physical findings of atrophy and
weakness also resulted in a grade modifier of three. He averaged these grade modifiers and found
that the appropriate grade modifier was 2 with a default value of five percent permanent
impairment of the right upper extremity. Dr. Moore then proceeded to modify the default
impairment for grade 2 based on the functional scale grade. He found that appellant’s QuickDASH
score was 88.6, severe. Dr. Moore then determined that she had a total of six percent permanent
impairment of the right upper extremity.
OWCP referred Dr. Moore’s report to an OWCP medical adviser on May 10, 2017. In his
May 11, 2017 memorandum, OWCP’s medical adviser found that Dr. Moore’s findings
comported with the A.M.A., Guides and that appellant had no more than six percent permanent
impairment of her right upper extremity. He further noted that she had previously received a
schedule award for 13 percent permanent impairment of her right upper extremity due to right
carpal tunnel syndrome and was not, therefore, entitled to an additional schedule award.
By decision dated May 17, 2017, OWCP denied appellant’s claim for an additional
schedule award based on the reports of Dr. Moore and OWCP’s medical adviser. On May 24,
2017 counsel requested an oral hearing before an OWCP hearing representative.
At the oral hearing on November 14, 2017, counsel contended that there was an unresolved
conflict of medical evidence.
By decision dated January 26, 2018, OWCP’s hearing representative found that appellant
had no more than 13 percent permanent impairment of her right upper extremity for which she had
previously received schedule award compensation. She found that Dr. Moore and OWCP’s
medical adviser applied the appropriate version of the A.M.A., Guides and determined that
appellant did not have more than 13 percent permanent impairment of her right upper extremity
and that she was not entitled to an additional schedule award.
LEGAL PRECEDENT
The schedule award provision of FECA9 and its implementing regulations10 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for loss
of loss of use, of scheduled members or functions of the body. FECA, however, does not specify
the manner in which the percentage loss of a member shall be determined. The method used in
making such determination is a matter which rests in the discretion of OWCP. For consistent
7

Id.

8

Id.

9

Supra note 2.

10

20 C.F.R. § 10.404.

4

results and to ensure equal justice, the Board has authorized the use of a single set of tables so that
there may be uniform standards applicable to all claimants. OWCP evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides, published in 2009.11 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.12 It is well established that in determining the amount of a schedule award for a
member of the body that sustained an employment-related impairment, preexisting impairments
are to be included.13
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.14 In
Table 15-23, grade modifier levels (ranging from 0 to 4) are described for the categories Test
Findings, History, and Physical Findings. The grade modifier levels are averaged to arrive at the
appropriate overall grade modifier level and to identify a default rating value. The default rating
value may be modified up or down by one percent based on functional scale, an assessment of
impact on daily living activities.15
In some instances, OWCP’s medical adviser’s opinion can constitute the weight of the
medical evidence. This occurs in schedule award cases where an opinion on the percentage of
permanent impairment and a description of physical findings is on file from an examining
physician, but the percentage estimate by this physician is not based on the A.M.A., Guides. In
this instance, a detailed opinion by OWCP’s medical adviser may constitute the weight of the
medical evidence. As long as OWCP’s medical adviser explains his or her opinion, shows values
and computation of impairment based on the A.M.A., Guides, and considers each of the reported
findings of impairment, his or her opinion may constitute the weight. If the attending physician
misapplied the A.M.A., Guides, no conflict would exist because the attending physician’s report
would have diminished probative value and the opinion of OWCP’s medical adviser would
constitute the weight of medical opinion.16

11

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides. A.M.A.,
Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability
Claims, Chapter 2.808.5 (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,
Chapter 3.700, Exhibit 1 (January 2010).
12

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

13

P.R., id.; Carol A. Smart, 57 ECAB 340 (2006).

14

A.M.A., Guides 449, Table 15-23; 448.

15

Id.

16
Supra note 11 at Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 2.810.8j
(September 2010); A.W., Docket No. 17-0587 (issued August 7, 2018).

5

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish more than 13
percent permanent impairment of her right upper extremity for which she previously received
schedule award compensation.
The Board finds that Dr. Moore and OWCP’s medical adviser properly determined that
appellant had no more than 13 percent permanent impairment of her right upper extremity for
which she had received a schedule award. The physicians based their reports on the appropriate
tables and standards of the sixth edition of the A.M.A., Guides. Both Dr. Moore and OWCP’s
medical adviser utilizing Table 15-23 on page 449 of the sixth edition of the A.M.A., Guides that
appellant had six percent permanent impairment of her right upper extremity due to right median
nerve entrapment at her wrist resulting from carpal tunnel syndrome.
While appellant’s physician Dr. Rook reached a greater impairment rating based on his
diagnoses of right carpal tunnel syndrome, and right pronator syndrome, he determined his ratings
in accordance with the DBI methodology, rather than the appropriate section of the A.M.A.,
Guides.17 The A.M.A., Guides provide that multiple, concurrent, focal nerve compromise
syndromes should be rated only in accordance with Table 15-23.18 Therefore, Dr. Rook’s
impairment rating was not in keeping with the A.M.A., Guides. As his permanent impairment
rating was of limited probative value, the opinion of OWCP’s medical adviser constituted the
weight of the medical opinion evidence.19
The Board thus finds that appellant has not established greater than 13 percent permanent
impairment of her right upper extremity, for which she previously received schedule award
compensation.
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.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish more than 13
percent permanent impairment of her right upper extremity for which she previously received
schedule award compensation.

17

Id. at 437, Table 15-21.

18

Id. at 448.

19

Supra note 16.

6

ORDER
IT IS HEREBY ORDERED THAT the January 26, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 9, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, New York, NY,
Employer
__________________________________________

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

Docket No. 08-1812
Issued: January 22, 2009

Case Submitted on the Record

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

JURISDICTION
On June 10, 2008 appellant, through her attorney, filed a timely appeal of the Office of
Workers’ Compensation Programs’ hearing representative’s merit decision dated November 30,
2007 finding that she had not established employment-related disability beginning
March 22, 2007. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has employment-related disability entitling her to
compensation beginning March 22, 2007.
FACTUAL HISTORY
On February 23, 2007 appellant, then a 67-year-old mail handler, filed a traumatic injury
claim alleging that she developed swelling and redness in her right wrist and numbness in her

right middle finger when the “entire top corner of a supply cabinet fell out and on [her] right
hand and wrist.” Appellant sought medical treatment on February 27, 2007.
Dr. Steven J. Ravich, a Board-certified orthopedic surgeon, examined appellant on
March 5, 2007 and diagnosed work-related sprained right wrist. He stated that appellant was
unable to work. On March 21, 2007 Dr. Ravich expanded his diagnoses to include work-related
sprained right wrist and carpal tunnel syndrome. He stated that appellant was unable to work
due to these conditions. Dr Ravich repeated these diagnoses on April 11 and 24, 2007.
In a letter dated April 5, 2007, the Office informed appellant that the evidence she
submitted was not sufficient to establish carpal tunnel syndrome as a result of the February 23,
2007 employment incident. Appellant submitted a note dated March 5, 2007 from Dr. Ravich,
who described her employment incident of February 23, 2007 as “several items of various
weights ranging from 5 to 10 pounds fell out of a cabinet landing on her right wrist.” At that
time appellant’s physical examination revealed a negative Tinel’s sign and a negative Phalen’s
test. Dr. Ravich diagnosed right wrist sprain. He completed a note on March 21, 2007 and
stated that appellant had no relief from her wrist sprain symptoms and found that appellant had
positive Phalen’s test and positive Tinel’s sign. On April 11, 2007 Dr. Ravich stated that
appellant had minimal improvement of her right carpal tunnel syndrome and exhibited decreased
motion and decreased strength in her right wrist. He noted positive Phalen and Tinel’s signs.
In a report dated July 18, 2007, Dr. Stephen Nedelcu, a Board-certified internist, stated
that he examined appellant on February 23, 2007 due to the injury which resulted from large
numbers of items from a supply cabinet falling on her right hand and wrist. Appellant exhibited
redness, numbness and swelling of her right hand and right wrist. Dr. Nedelcu diagnosed
contusion of the right hand with possible nerve involvement of the second, third and fourth
fingers as a result of the employment incident. He stated that appellant was totally disabled due
to this condition from February 27 through April 18, 2007.
The Office accepted appellant’s claim for right wrist sprain and contusion of the wrist
and hand on May 9, 2007. In a separate decision dated May 9, 2007, it denied appellant’s claim
for continuation of pay after March 21, 2007. The Office found that the medical evidence
suggested a change in appellant’s right wrist condition after March 5, 2007, which was not
employment related.
On June 4, 2007 appellant filed a claim for compensation requesting compensation for
leave without pay from March 22 through June 1, 2007. By decision dated June 8, 2007, the
Office denied appellant’s claim finding that the medical evidence did not support disability for
work due to the February 23, 2007 employment injury on or after March 22, 2007. Appellant,
through her attorney, requested an oral hearing on June 21, 2007. She submitted a report from
Dr. Ravich dated May 23, 2007. Dr. Ravich stated that appellant had trauma on February 23,
2007, that she had no prior history of wrist or hand problems and that she was treated for the
February 23, 2007 injury. He diagnosed right wrist and hand contusion with a sprain as well as
carpal tunnel syndrome. Dr. Ravich stated, “All her present symptoms are causally related to her
injury of record.”

2

Dr. Serge Alerte, a Board-certified internist, examined appellant on February 23, 2007
and noted that she sustained a right hand injury. He noted that appellant’s right hand was oozing
and that her finger was tender to palpation as well as tenderness in the wrist and hand and right
little finger.
In a report dated June 12, 2007, Dr. Ravich noted that appellant continued to exhibit right
wrist pain and carpal tunnel syndrome. He stated, “At this time, the patient was advised that she
should have treatment for right carpal tunnel, which is directly and causally related to her injury
of record.”
Dr. Mark A.P. Filippone, a physician Board-certified in physical medicine and
rehabilitation, examined appellant on October 5, 2007. He described her history of injury and
noted that several heavy objects fell on her hand and wrist. Dr. Filippone found atrophy of the
right thenar eminence and positive Tinel’s sign. He diagnosed bilateral carpal tunnel syndrome
based on electromyelogram as well as post-traumatic contusion of the right wrist. Dr. Filippone
attributed appellant’s diagnosed conditions to her February 23, 2007 employment injury.
Appellant testified at her oral hearing on October 16, 2007. By decision dated
November 30, 2007, the hearing representative denied appellant’s claim for compensation on or
after March 22, 2007 due to her accepted employment injuries. He found that the medical
evidence supported that appellant’s disability after March 22, 2007 was due to her diagnosed, but
not accepted, condition of carpal tunnel syndrome and therefore not currently compensable.
LEGAL PRECEDENT
Appellant for each period of disability claimed, has the burden of proving by a
preponderance of the reliable, probative and substantial evidence that she is disabled for work as
a result of her employment injury. Whether a particular injury caused an employee to be
disabled for employment and the duration of that disability are medical issues which must be
provide by preponderance of the reliable probative and substantial medical evidence.1
Generally, findings on examination are needed to justify a physician’s opinion that an
employee is disabled for work. The Board has stated that, when a physician’s statements
regarding an employee’s ability to work consist only of a repetition of the employee’s complaints
that he or she hurts too much to work, without objective signs of disability being shown, the
physician has not presented a medical opinion on the issue of disability or a basis for payment of
compensation.2
ANALYSIS
The Office accepted that appellant sustained right wrist sprain and contusion of the wrist
and hand due to the February 23, 2007 employment injury. Beginning on March 21, 2007,
Dr. Ravich, a Board-certified orthopedic surgeon, provided the additional diagnosis of carpal
1

Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

2

Id.

3

tunnel syndrome based on findings of a positive Tinel’s sign and positive Phalen’s test. The
Office has not issued a final decision, which accepts or denies this condition as causally related
to the February 23, 2007 employment injury.3
Dr. Nedelcu, a Board-certified internist, completed a report on July 18, 2007 and
diagnosed contusion of the right hand with possible nerve involvement of the second, third and
fourth fingers of appellant’s right hand. He opined that appellant was totally disabled from
February 27 through April 18, 2007 due to these conditions. This is the only medical evidence in
the record which attributes appellant’s disability on and after March 22, 2007 to her accepted
employment injuries. The Board finds that this report is not sufficient to meet appellant’s burden
of proof to establish continuing disability, as Dr. Nedelcu did not provide any ongoing physical
findings or objective signs of disability and did not provide medical reasoning explaining why he
believed that the accepted conditions resulted in continuing disability. This evidence is
necessary given the additional diagnosis of carpal tunnel syndrome, which the Office has not
accepted as employment related and which may account for appellant’s continued period of
disability.
CONCLUSION
The Board finds that the medical evidence is not sufficient to establish that appellant was
totally disabled on or after March 22, 2007 due to her accepted employment injuries of right
wrist sprain and contusion of the wrist and hand.

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The Board notes that the Office has not issued a final decision within one year of the date of the appeal on
June 10, 2008 denying appellant’s claim for carpal tunnel syndrome such that the Board may review the issue on
appeal. 20 C.F.R. § 501.2(c). The only issue on appeal is whether appellant has established a period of disability on
or after March 22, 2007 due to her accepted employment-related injuries, which do not include carpal tunnel
syndrome.

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ORDER
IT IS HEREBY ORDERED THAT November 30, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 22, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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