United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
U.S. POSTAL SERVICE, LAKE FOREST POST
OFFICE, Jacksonville, FL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 22-0563
Issued: March 22, 2022

Case Submitted on the Record

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

On March 8, 2022 appellant filed an appeal from a July 15, 2020 nonmerit decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 22-0563.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation
Act.1 For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s
review authority is limited to appeals which are filed within 180 days from the date of issuance
of OWCP’s decision.2
The 180 th day following the July 15, 2020 decision was January 11, 2021. As appellant
did not file an appeal with the Board until March 8, 2022, more than 180 days after the July 1 5 ,
2020 OWCP decision, the Board finds that the appeal docketed as No. 22-0563 is untimely filed.
The Board is without jurisdiction to review the appeal. Appellant has not explain ed her failure to
timely file an appeal with supporting documentation sufficient to establish compelling
circumstances. Because there is no final adverse decision issued by OWCP within 180 days of
1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

2

Id. at § 501.3(e).

the filing of the instant appeal, the Board concludes that the appeal docketed as No. 22 -0563,
must be dismissed. 3 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 22-0563 is dismissed.
Issued: March 22, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

The Board’s decisions and orders are “final upon the expiration of 30 days from the d ate o f t h eir issu an ce. ”
20 C.F.R. § 501.6(d).
3

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
U.S. POSTAL SERVICE, EAST LIBERTY
STATION, East Liberty, PA, Employer
__________________________________________
Appearances:
Joseph J. Chester, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 15-0656
Issued: July 29, 2015

Case Submitted on the Record

ORDER REMANDING CASE
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

On January 24, 2015 appellant, through counsel, timely filed an application for review of
a July 30, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which denied his claim for an emotional condition.1
The Board has duly considered the matter and finds that the case is not in posture for a
decision and must be remanded to OWCP. In the case of William A. Couch,2 the Board held that
when adjudicating a claim, OWCP is obligated to consider all evidence properly submitted by a
claimant and received by OWCP before the final decision is issued. In this case, in the decision
dated July 30, 2014, an OWCP hearing representative denied appellant’s claim for an emotional
condition, finding that the evidence had failed to establish compensable factors of employment.
She noted that following the oral hearing appellant submitted additional argument with a
1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from July 30, 2014, the date of OWCP’s last decision was
January 26, 2015. Since using January 30, 2015, the date the appeal was received by the Clerk of the Appellate
Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of
the U.S. Postal Service postmark is January 24, 2015, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

41 ECAB 548 (1990).

June 16, 2014 brief and that the employing establishment submitted comments on June 18 and
19, 2014. The hearing representative did not, however, address the additional evidence
submitted by appellant on June 25, 2014.
The Board finds that OWCP did not review the evidence received on June 25, 2014.3 In
that submission, appellant provided supportive documentation of assertions made at the oral
hearing. While the hearing representative specifically addressed appellant’s allegations made at
the oral hearing as well as additional evidence submitted by appellant and the employing
establishment through June 19, 2014, she did not mention any evidence submitted by either party
after June 19, 2014. The Board finds that the record establishes that the hearing representative
did not review the June 25, 2014 evidence in the July 30, 2014 decision.
As OWCP did not review this evidence, the case will be remanded to OWCP to enable it
to properly consider all the evidence submitted at the time of the July 30, 2014 decision.
Following such further development as OWCP deems necessary, it shall issue a de novo decision
on the claim.
IT IS HEREBY ORDERED THAT the July 30, 2014 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: July 29, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

3

See Linda Johnson, 45 ECAB 439, 440 (1994) (where the Board held that it is necessary that OWCP review all
evidence submitted by a claimant and received by OWCP prior to issuance of its final decision and noted that this
principle applies with equal force when evidence is received by OWCP the same day a final decision is issued).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.F., Appellant
and
U.S. POSTAL SERVICE, CENTRAL CITY
CARRIER FACILITY, Atlanta GA, Employer
__________________________________________

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

Docket No. 07-102
Issued: October 2, 2007

Case Submitted on the Record

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

JURISDICTION
On October 17, 2006 appellant filed a timely appeal of a May 31, 2006 Office of
Worker’s Compensation Programs’ decision in which a hearing representative affirmed the
termination of wage-loss benefits. 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 the Office properly terminated appellant’s monetary compensation
benefits effective March 2, 2005 under section 8106(c) of the Federal Employees’ Compensation
Act on the grounds that he refused an offer of suitable work.
FACTUAL HISTORY
On August 24, 1994 appellant, then a 36-year-old special delivery messenger, filed a
traumatic injury claim alleging that on that date his postal vehicle was “rear-ended” while he was
sitting at a red light and that this resulted in injuries to his neck and shoulders. By letter dated

August 24, 1994, the Office accepted appellant’s claim for cervical strain. Subsequently, it
accepted his claim for aggravation of cervical disc disease.
In an attending physician’s report (Form CA-20), dated August 22, 2003, Dr. William F.
Rainey, appellant’s treating family practitioner, stated that appellant could perform light duty for
six hours a day. He restricted appellant to light-duty work six hours a day in reports dated
through January 23, 2004. On September 26, 2003 he responded to questions from the Office by
indicating that the residuals of appellant’s work-related injury had not resolved and that the
expected recovery date was unknown.
By letter dated February 9, 2004, the Office asked Dr. Rainey to address appellant’s work
tolerance limitations. It asked him if appellant could return to work for eight hours a day and, if
not, to provide an opinion on his limitations. Finally, the Office asked Dr. Rainey if appellant’s
restrictions were permanent and when he could return to his regular employment. In attending
physician’s reports dated February 20 and March 19, 2004, Dr. Rainey restricted appellant to
working six hours a day.
On April 12, 2004 the Office referred appellant to Dr. Joseph Hoffman, Jr., a Boardcertified orthopedic surgeon, for a second opinion. In a medical report dated April 27, 2004,
Dr. Hoffman listed his impression as multilevel disc disease, cervical spine, posttraumatic in
origin. He found that he had residuals of the accepted conditions of cervical degenerative disc
disease and cervical sprain. Dr. Hoffman opined that any job which required that he lift
excessive amounts of weight in a repetitive fashion would aggravate his condition. He advised,
however, that appellant could work light duty for eight hours a day.
By letter dated May 26, 2004, the Office asked a Dr. Rainey if appellant could return to
work eight hours a day with restrictions. Dr. Rainey responded that appellant was limited to
working light duty for six hours a day. In a medical report dated July 15, 2004, he stated that
appellant had been his patient for over seven years, that his problems with recurrent neck pain
first appeared in 1988, that appellant continued to have problems with his neck, that he had
approximately 15 to 20 percent loss of function and that his present job activities could further
aggravate his condition. The Office found a conflict in medical opinion between Dr. Rainey and
Dr. Hoffman as to appellant’s capacity for modified duty.
On July 29, 2004 the Office referred appellant to Dr. Alexander Doman, a Board-certified
orthopedic surgeon, for an impartial medical examination. On August 10, 2004 Dr. Doman
diagnosed congenital spinal stenosis with multi-level disc bulge at C3-6. He opined that
appellant did not have residuals of the accepted conditions of aggravation of cervical
degenerative disc disease or cervical sprain. Dr. Doman noted that appellant was known to have
congenital narrowing of the cervical spine that was not related to the occupational injury. He
stated: “It is my firm and definite opinion that [appellant’s] symptoms, at present, represent the
natural history of the underlying cervical spinal stenosis.” Dr. Doman opined that appellant was
able to work eight hours a day as found by Dr. Hoffman and did not agree with Dr. Rainey that
appellant was limited to six hours a day.
On July 30, 2004 Dr. Rainey reiterated that appellant could work no more than six hours
a day.

2

On August 2, 2004 appellant filed a claim for a schedule award.
On November 4, 2004 the employing establishment provided a modified job offer to
appellant as a clerk/special delivery messenger. The position would involve appellant scanning
and separating incoming express mail, reviewing second notices for certified mail and return
parcels, assisting with counting and recording business reply mail, assisting with scanning and
inputting incoming certified mail and answering the telephone. It involved sitting, walking and
standing up to eight hours a day, reaching up to two hour a day, reaching above shoulder one
hour a day, twisting/bending stooping up to four hours a day, pushing/pulling/lifting up to 10
pounds for eight hours a day, squatting up to six hours a day. Appellant would ask assistance for
lifting any item over 10 pounds.
By letter dated December 14, 2004, the Office notified appellant that the modified
position offered by the employing establishment was suitable to his physical limitations. The
Office stated that appellant had 30 days to accept the position or provide a written explanation
for not accepting the position. The Office noted that, if appellant failed to report for the offered
position or failed to demonstrate that the failure was justified, his right to compensation would be
terminated. On January 14, 2005 the Office notified appellant that it had not received any
response and provided 15 additional days to accept the position. By letter dated January 11,
2005, received by the Office on January 19, 2005, appellant noted his objection to working
“protracted work hours.” On January 18, 2005 the employing establishment advised the Office
that the position was still available.
By decision dated March 8, 2005, the Office terminated appellant’s wage-loss
compensation effective March 20, 2005 due to his refusal of suitable work.
On April 7, 2005 appellant requested an oral hearing. In a February 18, 2005 report,
Dr. Rainey indicated that appellant had been his patient for over five years. He stated:
“It has been my opinion, based on [appellant’s] early MRI [magnetic resonance
imaging scan] findings, that he has severe [degenerative disc disease] (MRI scan
was done prior to my taking over his case) he has had exacerbation because of
trauma to his neck. The limitation of six hours per day are based on the
examination in the office and my understanding of his work expectations.”
A hearing was held on February 23, 2006. After the hearing appellant submitted a
cervical MRI scan report dated April 4, 2006 and electromyogram examination results dated
April 13, 2006.
In a May 26, 2006 decision, the Office hearing representative affirmed the March 5, 2005
termination of wage-loss benefits. He noted that appellant has failed to supply sufficient medical
documentation to support his refusal of the suitable eight-hour position.
LEGAL PRECEDENT
Section 8106(c)(2) of the Act states that a partially disabled employee who refuses to
seek suitable work or refuses or neglects to work after suitable work is offered to, procured by or

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secured for him is not entitled to compensation.1 The Office has authority under this section to
terminate compensation for any partially disabled employee who refuses or neglects suitable
work when it is offered. Before compensation can be terminated, however, the Office has the
burden of demonstrating that the employee can work, setting forth the specific restrictions, if
any, on the employee’s ability to work and has the burden of establishing that a position has been
offered within the employee’s work restrictions, setting forth the specific job requirements of the
position.2 The Board has recognized that section 8106(c) serves as a penalty provision as it may
bar an employee’s entitlement to future compensation and, for this reason, will be narrowly
construed.3
The implementing regulation provides that an employee, who refuses or neglects to work
after suitable work has been offered or secured by the employee has the burden of showing that
such refusal or failure to work was reasonable or justified and shall be provided with the
opportunity to make such a showing before entitlement to compensation is terminated.4 To
justify termination, the Office must show that the work offered was suitable and that appellant
was informed of the consequences of his refusal to accept such employment.5
The Act provides that, if there is a disagreement between a physician making an
examination for the United States and the physician of he employee, the Secretary must appoint a
third physician to make an examination.6 The implementing regulation states that if a conflict
exists between the medical opinion of the employee’s physician and the medical opinion of
either a second opinion physician or an Office medical adviser or consultant, the Office shall
appoint a third physician to make an examination. This is called a referee examination and the
Office will select a physician who is qualified in the appropriate specialty and who has had no
prior connection with the case.7 It is well established that, when a case is referred to an impartial
medical specialist for the purpose of resolving a conflict, the opinion of such specialist, if
sufficiently well rationalized and based on proper factual and medical background must be given
special weight.8
The issue of whether an employee has the physical ability to perform a modified position
offered by the employing establishment is primarily a medical question that must be resolved by

1

5 U.S.C. § 8106(c)(2).

2

Frank J. Sell, Jr., 34 ECAB 547 (1983).

3

Stephen A. Pasquale, 57 ECAB __ (Docket No. 05-614, issued February 8, 2006).

4

20 C.F.R. § 10.517(a) (1999); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment:
Determining Wage-Earning Capacity, Chapter 2.814.5(a)(5) (July 1997).
5

Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB 818 (1992).

6

5 U.S.C. §§ 8101-8193, 8123(a).

7

20 C.F.R. § 10.321.

8

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

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medical evidence.9 It is well established that the Office must consider preexisting and
subsequently acquired conditions in the evaluation of suitability of an offered position.10
ANALYSIS
The Office accepted that appellant sustained a cervical strain and aggravation of cervical
disc disease as a result of a work-related automobile accident on August 24, 1994. Dr. Rainey
released appellant to return to work at modified duty for six hours a day. The Office referred
appellant to Dr. Hoffman for a second opinion. On April 27, 2004 Dr. Hoffman found that
appellant could work eight hours a day subject to specified restrictions. In order to resolve the
conflict between Dr. Rainey and Dr. Hoffman, the Office properly referred appellant to
Dr. Doman for an impartial medical examination. Dr. Doman reviewed appellant’s extensive
medical records, conducted a physical examination and found that appellant did not have
residuals from his work-related aggravation of cervical degenerative disc disease or cervical
sprain. He noted that appellant had congenital narrowing of the cervical spine that was not
related to the accepted injury. Dr. Doman opined that appellant could work modified duty eight
hours a day. He indicated that he was known to have congenital narrowing of the cervical spine
and that this narrowing was not related to the occupational injury, but was long-standing in
nature and developmental in origin. Dr. Doman noted that the accepted aggravation of the
degenerative disc disease and cervical sprain was a self-limited disorder. Dr. Doman noted his
agreement with the work limitations recommended by Dr. Hoffman. The Board finds that the
opinion of Dr. Doman was based on a proper factual and medical background and is well
rationalized. His opinion as the impartial medical specialist is entitled to special weight.11
Appellant was subsequently offered modified duty that conformed with the physical restrictions
approved by Dr. Doman. He did not accept the suitable job offer. Accordingly, the Office
properly terminated appellant’s monetary compensation benefits based on the opinion of the
impartial medical examiner, Dr. Doman that appellant could work eight hours a day light duty.
At the hearing, appellant submitted an additional report from Dr. Rainey who reiterated
his recommendation of six hours work. This report is not sufficient to overcome the special
weight accorded to Dr. Doman as the impartial medical specialist.12
CONCLUSION
The Board finds that the Office properly terminated appellant’s monetary compensation
benefits effective March 2, 2005.

9

See Marilyn D. Polk, 4 ECAB 673 (1993).

10

Stephen A. Pasquale, 57 ECAB ___ (Docket No. 05-614, issued February 8, 2006).

11

Sharyn D. Bannick, 54 ECAB 537 (2003).

12

As Dr. Rainey was on one side of the conflict that was resolved by Dr. Doman, his report merely reiterated his
prior opinion as to appellant’s capacity for work and is insufficient to give rise to a new medical conflict. See
Barbara J. Warren, 51 ECAB 413 (2000).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 31, 2006 is affirmed.
Issued: October 2, 2007
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
DEPARTMENT OF THE TREASURY,
BUREAU OF ENGRAVING & PRINTING,
Fort Worth, TX, Employer
__________________________________________

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Docket No. 13-879
Issued: September 26, 2013

Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Case Submitted on the Record

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

JURISDICTION
On March 4, 2013 appellant, through counsel, filed a timely appeal from a September 17,
2012 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s medical
benefits effective September 22, 2012 on the grounds that he had no residuals of the accepted
temporary aggravation of lumbar degenerative disc disease.
On appeal appellant’s attorney asserts that a cervical condition was also caused by the
August 14, 2009 employment injury and that appellant continues to be disabled due to the

1

5 U.S.C. §§ 8101-8193.

accepted lumbar condition. He further asserts that the opinion of the referee examiner
constituted stale medical evidence.
FACTUAL HISTORY
On August 18, 2009 appellant, then a 52-year-old currency examiner and exchanger, who
filed a traumatic injury claim alleging that on August 14, 2009 he injured his lower back and left
leg at work when he was bending and stooping to break seals.2 He stopped work until
August 18, 2009.
Reports with illegible signatures dated August 14, 2009 noted the history of injury and
that appellant had a history of multiple back injuries. Lumbar pain and radiculopathy were
diagnosed. In reports dated August 17, 2009, Dr. John D. Diamond, a Board-certified family
physician, noted a history of constant low back pain and decreased lumbar range of motion since
the August 14, 2009 employment injury. He diagnosed lumbar strain and radiculopathy.
In an August 19, 2009 report, Dr. Jacob Rosenstein, a Board-certified neurosurgeon,
reported that appellant had a past history of discectomy at L4-5 in 1999 and an anterior cervical
decompression on April 15, 2005 and a posterior lumbar interbody fusion on October 10, 2000,
performed by him. He reported that appellant had recurrent neck pain in 2006 and now reported
chronic neck and low back pain. Dr. Rosenstein described the August 14, 2009 employment
incident, stating that appellant was experiencing severe low back pain and increased neck pain.
He noted physical examination findings of cervical and lumbar tenderness to palpation and
decreased range of motion. Dr. Rosenstein diagnosed chronic lower back pain; lumbar facet
syndrome; small fiber sensory peripheral neuropathy; chronic left S1 and right L5 radiculopathy,
a C4-5 central disc protrusion, status postcervical surgery in 2005, status post lumbar surgery in
2000 and bilateral foot pain.
In reports dated August 31, 2009, Dr. Diamond again noted appellant’s complaint of low
back pain and reiterated his findings and conclusions. A September 11, 2009 computerized
tomography (CT) scan study of the lumbar spine demonstrated a solid L4-5 fusion, moderately
advanced L5-S1 disc and facet arthrosis, and L2-3 and L3-4 bulging. A September 14, 2009 CT
scan study of the cervical spine demonstrated a solid C4-6 fusion, moderate C4-5 bulging and a
right C6-7 herniation.
On September 28, 2009 Dr. Rosenstein reported a new left C6-7 disc herniation.
Dr. Diamond continued to submit reports. He noted that appellant had reported lower extremity
pain since 2006 to 2007 and constant neck pain since 2005 but that the August 14, 2009
employment injury caused severe pain from the neck, extending down the full length of the
spine. Dr. Diamond reiterated his findings and conclusions. In a December 2, 2009 report,
Dr. Rosenstein indicated that appellant was involved in a motor vehicle accident on October 13,
2009 when he was rear-ended and that his low back and neck pain had increased since the
2

Cheryl A. Moore, manager of the workers’ compensation branch of the employing establishment, indicated that,
at the time of the August 14, 2009 incident, appellant had worked light duty for quite some time due to a preexisting
cervical and lumbar conditions. Appellant did no lifting and only bent to take a strap (like a belt) off a load.
Ms. Moore stated that appellant did not report problems with his neck at the time of the August 14, 2009 incident.

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August 14, 2009 employment injury with neck pain radiating into his left arm, occasional
numbness in both arms, increased pain turning his head side-to-side, stabbing pain in his low
back with pain and numbness in both legs. He repeated his diagnoses and recommended
continued conservative care.3
In an October 5, 2009 report, Dr. Marianne Cloeren, Board-certified in occupational and
internal medicine, noted her review of the medical record for the employing establishment. She
indicated that appellant had a history of both cervical and spinal fusions and a history of chronic
neck and back pain. Dr. Cloeren stated that appellant was working modified duty on August 14,
2009 and was not engaged in lifting. She opined that appellant had a lumbar musculoskeletal
strain caused by the August 14, 2009 incident.
On December 14, 2009 OWCP accepted that appellant had a temporary aggravation of
lumbar degenerative disc disease. Dr. Rosenstein performed a lumbar facet injection on
January 14, 2010. He and Dr. Diamond continued to submit reports describing appellant’s
cervical and lumbar condition.
In April 2010 OWCP referred appellant to Dr. John A. Sklar, a Board-certified
physiatrist, for a second-opinion evaluation. In a May 6, 2010 report, Dr. Sklar noted that
appellant had a long history of neck and back problems and had current complaints of radiating
neck and right shoulder pain and low back pain. He provided examination findings, noting that
appellant had a normal gait and could heel and toe walk without difficulty. Cervical and lumbar
range of motion was decreased and shoulder range of motion was full. There was some
decreased sensation over the right upper and left lower extremity. Palpatory examination
showed moderate tenderness to palpation in the right cervical paraspinals, trapezius, and right
lateral forearm, and moderate tenderness to palpation in the lumbar paraspinals, gluteals and
lateral thighs bilaterally.
Dr. Sklar advised that appellant’s current problems appeared to be more degenerative and
related to his prior surgical procedures then to any injuries that occurred on August 14, 2009,
stating that he found no evidence that appellant sustained a significant injury on that date. He
further noted that appellant was in a motor vehicle accident on October 13, 2009 and that this
was much more likely the cause of any ongoing complaints. Dr. Sklar found no clear evidence
of a significant ongoing radiculopathy on examination and opined that ongoing chronic pain
complaints were due to his long-standing back and neck problems and possibly the October 2009
motor vehicle accident. Dr. Sklar found no indication for ongoing treatment or additional
surgery, and that, if appellant required surgery in the future, it would be due to his prior back and
neck problems or possibly the motor vehicle accident and not to any minor injuries which may
have occurred on August 14, 2009.
3

The record also contains diagnostic studies that predate the August 14, 2009 work injury. A November 24, 1999
cervical myelogram and CT scan study demonstrated disc protrusions at C4-5 and C5-6. The lumbar spine
demonstrated a disc protrusion at L4-5. A July 13, 2000 CT scan study of the cervical spine demonstrated diffuse
disc protrusions at C4-5, C5-6 and C6-7. A lumbar spine CT scan that day noted postsurgical changes with
spondylosis at L5-S1 and a protrusion at L4-5. A lumbar spine magnetic resonance imaging (MRI) scan study on
November 29, 2003 demonstrated postsurgical changes and advised that the integrity of the fusion was
indeterminate. An April 8, 2005 cervical myelogram and CT scan study demonstrated disc narrowing at C5-6 and a
central protrusion at C4-5.

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A functional capacity evaluation dated May 11, 2010 demonstrated that appellant could
perform medium-duty work and had a severe index for depression and a moderate index for
anxiety. A chronic pain program was recommended. On May 13, 2010 Dr. Rosenstein noted
that appellant was recovering from surgery for renal carcinoma and continued to have neck and
low back pain. He reiterated his diagnoses and discussed treatment options. On May 26, 2010
Richard Slaughter, Psy.D., a licensed psychologist, performed a chronic pain evaluation. He
indicated that appellant had a pain disorder associated with both psychological factors and a
general medical condition and recommended a pain management program.
In a June 12, 2010 correspondence, appellant requested that his cervical condition be
accepted and that his physician be changed. A July 2, 2010 lumbar myelogram and CT scan
study demonstrated postsurgical changes and advanced disc degeneration at L5-S1 with annular
bulging at L3-4 and facet joint arthrosis at L2-3 and T12-L1. A September 7, 2010 lumbar
discogram and CT study demonstrated advanced L5-S1 disc disruption and severe concordant
pain production, marked bilateral foraminal stenosis and moderate to marked left facet arthrosis.
Dr. Diamond and Dr. Rosenstein continued to submit reports in which they described appellant’s
condition, reviewed diagnostic studies and reiterated their diagnoses.
In reports dated October 6 to December 2, 2010, Dr. Rosenstein described appellant’s
medical history regarding his lumbar condition. He provided examination findings for the
lumbar spine, noting tenderness to palpation in the lower lumbar area with positive facet signs, a
negative straight leg raise and 5/5 strength. Dr. Rosenstein diagnosed status post fusion surgery
at L4-5 on October 10, 2000, opining that it was solid; L5-S1 degenerative disc disease; internal
disc disruption syndrome (IDDS) at L5-S1; and lower extremity peripheral neuropathy by
electrophysiological studies. He advised that appellant was a candidate for decompression
surgery at L5-S1.
OWCP determined that a conflict in medical evidence had been created between
Dr. Rosenstein and Dr. Sklar regarding whether appellant’s cervical condition was due to the
August 14, 2009 injury, whether lumbar surgery should be authorized and regarding appellant’s
work capabilities. It referred appellant to Dr. Robert E. Holladay, IV, a Board-certified
orthopedic surgeon, for an impartial evaluation. Dr. Holladay was asked whether there were
objective clinical findings to support acceptance of a cervical condition and for requested lumbar
surgery and whether appellant still suffered residuals of the accepted condition.
In a December 7, 2010 report, Dr. Holladay, the referee physician, noted his review of the
statement of accepted facts, and the medical record including diagnostic studies. He noted that
appellant reported that he had retired and indicated that he had difficulties with activities of daily
living. Physical examination demonstrated tenderness over the base of the cervical spine and
decreased neck range of motion. Biceps, triceps and brachioradialis reflexes were 2+ and equal
bilaterally. Motor strengths were 5/5 in both upper extremities. Appellant had a vague
decreased sensation in a nondermatomal distribution in the right upper extremity. Examination
of the lumbar spine demonstrated generalized tenderness and no muscle spasm and decreased
lumbar range of motion. Patella and Achilles reflexes were 2+ and equal bilaterally. Motor
strengths were 5/5 and sensation was intact in both lower extremities. Heel and toe walk was
poor. Dr. Holladay diagnosed neck and low back pain, L4-L5 fusion, lumbar spine and fusion at
C5-6. He advised that there was an absence of any objective physical examination findings.

4

Dr. Holladay indicated that there was no objective evidence of a structural injury to the cervical
spine due to the August 14, 2009 employment injury, and that the diagnostic studies indicated
that there was ongoing problems with progression of degeneration above and below the previous
fusion at C5-6 in the cervical spine. He advised that, based upon the mechanism of injury
initially reported, the predominant complaint was of pain in the lower back and legs, and that
following this injury, there was an absence of objective examination findings and no documented
evidence of radiculopathy from his review of the medical records. Dr. Holladay advised that
there was no need for fusion at the cervical spine or lumbar spine, and that, based upon the
history provided in the medical record, appellant’s cervical spine condition was not related to the
August 14, 2009 employment injury, which caused a sprain or strain that had long since
resolved. He concluded that appellant’s clinical complaints were more likely related to the
preexisting degenerative condition.
On December 20, 2010 OWCP proposed to terminate appellant’s medical benefits on the
grounds that the weight of the medical evidence, characterized by the opinion of Dr. Holladay,
established that he no longer had a medical condition as a result of the employment injury.
Appellant, through his attorney, disagreed with the proposed termination. He submitted reports
and treatment notes from Dr. Rosenstein dated January 4 to October 26, 2011 in which the
physician disagreed with Dr. Holladay’s conclusion. Dr. Rosenstein described appellant’s
medical history and examination findings. He indicated that appellant did not sustain only a
strain/sprain of the lumbar spine, as that would have resolved within six weeks to three months,
but that he had remained symptomatic and needed an L5-Sl posterior lumbar fusion.
Dr. Rosenstein diagnosed: residual low back pain; status post October 10, 2000 fusion surgery at
L4-5, which was solid; disc degeneration; disc protrusion; gas-vacuum phenomenon; bilateral
foraminal stenosis, right worse than left, at L5-S1; and internal disc disruption at L5-S1.
In a pleading dated December 10, 2011, appellant’s attorney asserted that a cervical
condition should be accepted as employment related and that the recommended lumbar surgery
at L5-S1 should be authorized. Dr. Rosenstein continued to submit reports describing
appellant’s lumbar condition and reiterating his diagnoses and conclusions.
On September 13, 2012 Dr. Ronald Blum, an OWCP medical adviser, who is Boardcertified in orthopedic surgery, indicated that he had reviewed the medical evidence. He
concluded that appellant’s low back injury of August 14, 2009 had resolved with no evidence for
structural change resulting from the injury, and that any sprain/strain that appellant sustained that
day would have resolved in approximately six months, or by February 14, 2010.
By decision dated September 17, 2012, OWCP finalized the termination of medical
benefits, effective September 22, 2012. It found that the weight of the medical evidence rested
with the opinion of Dr. Holladay who performed the referee examination and advised that the
accepted temporary aggravation of lumbosacral disc degeneration had resolved with no residuals.
LEGAL PRECEDENT
Once OWCP 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. After it has
determined that an employee has disability causally related to his or her federal employment,

5

OWCP may not terminate compensation without establishing that the disability has ceased or
that it is no longer related to the employment. The right to medical benefits for an accepted
condition is not limited to the period of entitlement for disability. To terminate authorization for
medical treatment, OWCP must establish that appellant no longer has residuals of an
employment-related condition, which require further medical treatment.4
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.5 When the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.6
ANALYSIS
The Board finds that OWCP met its burden of proof to terminate appellant’s medical
benefits for the accepted temporary aggravation of lumbar disc disease on September 22, 2010.
OWCP determined that a conflict in medical evidence had been created and referred appellant to
Dr. Holladay for an impartial evaluation. Dr. Holladay was asked whether there were objective
clinical findings to support acceptance of a cervical condition and for requested lumbar surgery
and whether appellant still suffered residuals of the accepted condition.
As to appellant’s assertion on appeal that Dr. Holladay’s report constitutes stale medical
evidence, his attorney cited the case of Ruth Churchwell, Docket No. 02-792 (issued October 17,
2002), which found that OWCP improperly relied on stale medical evidence in terminating
wage-loss compensation for a refusal of suitable work under 5 U.S.C. § 8106(c). The Board
notes that, unlike Churchwell, the medical evidence used by OWCP to justify its termination of
benefits in the present case was more contemporaneous with its decision. Moreover, the present
case does not involve application of the penalty provision of section 8106(c). Furthermore,
Churchwell does not purport to set forth a particular time period in which medical evidence must
be developed prior to issuance of a termination decision by OWCP.7
In a comprehensive report dated December 7, 2010, Dr. Holladay, the referee physician,
noted his review of the statement of accepted facts, and the medical record including diagnostic
studies. He provided physical examination findings and diagnosed neck and low back pain, L4-5
fusion, lumbar spine and fusion at C5-6. Regarding the accepted temporary aggravation of
lumbar disc disease, Dr. Holladay advised that, based upon the mechanism of injury initially
reported, the predominant complaint was of pain in the lower back and legs. He opined that
following the employment injury, there was an absence of objective examination findings and no
documented evidence of radiculopathy from his review of the medical records. Dr. Holladay
4

Fred Simpson, 53 ECAB 768 (2002).

5

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

6

Manuel Gill, 52 ECAB 282 (2001).

7

T.D., Docket No. 10-1261 (issued January 21, 2011).

6

advised that there was no need for surgery of the lumbar spine. He concluded that appellant’s
clinical complaints were more likely related to the preexisting degenerative condition and that
his work-related injury had resolved.
While appellant continued to submit additional reports from Dr. Rosenstein, the Board
has long held that reports from a physician who was on one side of a medical conflict that an
impartial specialist resolved, are generally insufficient to overcome the weight accorded to the
report of the impartial medical examiner or to create a new conflict.8 Dr. Rosenstein had been on
one side of the conflict resolved by Dr. Holladay. Furthermore, in his reports dated January 4 to
October 26, 2011, Dr. Rosenstein did not explain how the August 14, 2009 employment injury,
accepted for temporary aggravation of lumbar degenerative disc disease, continued to cause
appellant’s low back complaints.
As noted above, in situations where there are opposing medical reports of virtually equal
weight and rationale and the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based on
a proper factual background, must be given special weight.9
The Board finds that, as Dr. Holladay provided a comprehensive, well-rationalized
opinion in which he clearly advised that at the time of his examination appellant did not have
residuals of the accepted temporary aggravation of lumbar disc disease, his opinion is entitled to
the special weight accorded an impartial examiner and constitutes the weight of the medical
evidence.10 OWCP therefore properly terminated appellant’s medical benefits for the accepted
condition effective September 22, 2010.11
As to appellant’s assertion on appeal that a cervical condition is employment related, the
Board’s jurisdiction extends only to the review of final decisions by OWCP.12 OWCP has not
issued a final decision regarding this aspect of appellant’s claim.
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.

8

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

9

Id.

10

See Sharyn D. Bannick, 54 ECAB 537 (2003).

11

Manuel Gill, supra note 6.

12

20 C.F.R. § 501.2(c); E.L., 59 ECAB 405 (2008). For final adverse OWCP decisions issued on and after
November 19, 2008, a claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e); see D.G.,
Docket No. 12-770 (issued April 20, 2012).

7

CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s medical
benefits effective September 22, 2012 on the grounds that the accepted temporary aggravation of
lumbosacral disc degeneration had resolved.
ORDER
IT IS HEREBY ORDERED THAT the September 17, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 26, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8


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

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

Docket No. 11-1091
Issued: December 16, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 29, 2011 appellant filed a timely appeal from a February 10, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) finding that he had
abandoned his request for an oral hearing. The most recent OWCP merit decision is dated
September 3, 2010. As more than 180 days elapsed from the date of issuance of the
September 3, 2010 OWCP decision to the filing of this appeal1, pursuant to the Federal
Employees Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board only has
jurisdiction over the nonmerit decision.

1

Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction is computed
beginning on the day following the date of OWCP’s decision. 20 C.F.R. § 501.3(f)(2). As OWCP’s decision was
issued on September 3, 2010, the 180-day computation begins September 4, 2010 and ends March 3, 2011.
Appellant’s appeal was received on March 29, 2011 and postmarked March 21, 2011; thus, the Board does not have
jurisdiction over the merits. 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly found that appellant had abandoned his request for
an oral hearing before an OWCP hearing representative.
On appeal, appellant contends that he was unable to connect using the pin code OWCP
provided for the scheduled oral hearing.
FACTUAL HISTORY
On June 28, 2010 appellant, then a 58-year-old postal carrier, filed an occupational
disease claim alleging that he sustained an injury or medical condition on April 14, 2004 as a
result of his federal employment. As he was preparing mail for delivery on April 14, 2004, his
vision became blurry, he experienced dryness in his throat and he started to feel faint and dizzy.
Appellant submitted a U.S. Postal Service routing slip, a SF-50 Personnel Action Form, a screen
from WEBMD reporting the causes of type 2 diabetes and the employing establishment’s
challenge letter.
In a July 16, 2010 letter, OWCP advised appellant of the deficiencies in his claim and
requested additional factual and medical information. In response, appellant submitted an
undated personal statement and several certifications of Health Care Provider, Family and
Medical Leave Act (FMLA) forms. In a June 8, 2004 report, Dr. Naland P. Shenoy, a Boardcertified internist specializing in endocrinology, diabetes and metabolism, advised that appellant
had the onset of type 2 diabetes from about April 15, 2004 and was experiencing significant
visual impairment due to the disease. He noted that it was a “chronic lifelong disease, which will
require frequent visits, occasional hospitalization and may cause illness and incapacitation.”
By decision dated September 3, 2010, OWCP denied the claim finding that the medical
evidence was not sufficient to establish that the claimed condition was causally related to the
accepted work event(s).
On September 27, 2010 appellant disagreed with the decision and requested a telephonic
hearing before an OWCP hearing representative.
In a December 8, 2010 letter, OWCP notified appellant that a telephonic hearing before
an OWCP hearing representative was scheduled for January 10, 2011 at 10:00 a.m. eastern time.
Appellant was provided a toll-free number and a pass code to connect to the hearing
representative and court reporter. The notice was sent to his address of record.
By decision dated February 10, 2011, an OWCP hearing representative found that
appellant abandoned his request for an oral hearing.
LEGAL PRECEDENT
Under FECA and its implementing regulations, a claimant who has received a final
adverse decision by OWCP is entitled to receive a hearing upon writing to the address specified

2

in the decision within 30 days of the date of the decision for which a hearing is sought.3 Unless
otherwise directed in writing by the claim, an OWCP hearing representative will mail a notice of
the time and place of the hearing to the claimant and any representative at least 30 days before
the scheduled date.4 OWCP has the burden of proving that it mailed notice of a scheduled
hearing to a claimant.5
The authority governing the abandonment of hearings rests with OWCP’s procedure
manual, which provides that a hearing can be abandoned only under very limited circumstances.
All three of the following conditions must be present: the claimant has not requested a
postponement; the claimant has failed to appear at a scheduled hearing; and the claimant has
failed to provide any notification for such failure within 10 days of the scheduled date of the
hearing. Under these circumstances, OWCP’s Branch of Hearings and Review will issue a
formal decision finding that the claimant has abandoned his request for a hearing and return the
case to the district OWCP.6
ANALYSIS
By decision dated September 3, 2010, OWCP denied appellant’s claim on the grounds
the medical evidence did not establish causal relation. Appellant timely requested an oral
hearing (telephonic) before an OWCP hearing representative. In a December 8, 2010 letter, it
notified him that a telephonic oral hearing was scheduled for January 10, 2011 at 10:00 a.m. The
letter was sent to appellant’s address of record.7 The record shows that he did not appear for the
scheduled hearing. Further, appellant did not request a postponement of the hearing or explain
his failure to appear at the hearing within 10 days of the scheduled hearing date of
January 10, 2011. Therefore, the Board finds that he abandoned his request for a hearing.8
On appeal, appellant contends that he was unable to connect to the scheduled hearing
with the pass code OWCP provided. There is no evidence of record that he contacted OWCP to
inform them of such a problem within 10 days of the scheduled hearing. Additionally, this
problem was raised for the first time on appeal, almost three months after the scheduled hearing.9
Appellant also presents arguments regarding the merits of his claim. As noted, the Board is
precluded from reviewing the merits of the claim.
3

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).

4

20 C.F.R. § 10.617(b).

5

See Michelle R. Littlejohn, 42 ECAB 463 (1991).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(e) (January 1999). See also G.J., 58 ECAB 651 (2007).
7

It is presumed in the absence of evidence to the contrary that a notice mailed to an individual in the ordinary
course of business was received. See Michelle R. Littlejohn, supra note 5.
8

See id.

9

Appellant also submitted new evidence on appeal. However, the Board is precluded from reviewing evidence
which was not before OWCP at the time it issued its final decision. See 20 C.F.R. § 501.2(c)(1).

3

CONCLUSION
The Board finds that OWCP properly found that appellant abandoned his request for an
oral hearing before an OWCP hearing representative.
ORDER
IT IS HEREBY ORDERED THAT the February 10, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 16, 2011
Washington, DC

Richard J. Daschbach, Chief Judge
Employees' Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.W., Appellant
and
DEPARTMENT OF THE TREASURY,
BUREAU OF THE MINT, Philadelphia, PA,
Employer
__________________________________________

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

Docket No. 08-1086
Issued: May 21, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 4, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ February 22, 2008 merit decision concerning his entitlement to
schedule award compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he has more than
a 10 percent permanent impairment of his left leg and a 0 percent permanent impairment of his
right leg.
FACTUAL HISTORY
This is the second appeal in this case. In the first appeal,1 the Board issued a decision on
October 25, 2007 in which it set aside the Office’s December 6, 2005 and October 3, 2006
1

Docket No. 07-244 (issued October 25, 2007).

decisions and remanded the case to the Office for further development regarding whether
appellant has more than a 10 percent permanent impairment of his left leg and a 0 percent
permanent impairment of his right leg.2 The Office accepted that appellant sustained lumbar and
thoracic strains and lumbar stenosis at L4-5 on July 6, 1998 and authorized multiple surgeries for
bulging or herniated discs at L3-4, L4-5 and LS-S1. It awarded appellant a schedule award for a
10 percent permanent impairment of his left leg and determined that he had a 0 percent
permanent impairment of his right leg. The Office had based its schedule award determination
on the opinions of Dr. Howard Levin, a Board-certified neurologist, who ostensibly served as an
impartial medical specialist, and Dr. Morley Slutsky, a Board-certified occupational medicine
physician who served as an Office medical adviser. The Board found, however, that Dr. Levin
actually served as an Office referral physician rather than an impartial medical specialist because
there was no conflict in the medical evidence at the time of appellant’s referral to him. The
Board determined that the October 16, 2003 opinion of Dr. George L. Rodriguez, an attending
Board-certified physical medicine and rehabilitation physician, and the August 26, 2004 opinion
of Dr. Stanford Feinberg, a Board-certified neurologist serving as an Office referral physician,
were of limited probative value regarding appellant’s permanent impairment and therefore could
not create a conflict in the medical evidence.3 The opinions of Dr. Rodriguez and Dr. Feinberg
were not made in accordance with the standards of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (5th ed. 2001).
The Board further found that Dr. Levin’s March 9, 2006 opinion was in need of
clarification. Dr. Levin concluded that appellant had a “permanent impairment disability of 10
percent whole person due to the weakness he is experiencing in his left lower extremity as a
result of the injury he reportedly sustained to his lumbar spine on July 6, 1998” and that there
“was no evidence that he is suffering from any permanent impairment in his right lower
extremity.” The Board noted that it was inappropriate for Dr. Levin to calculate a whole person
impairment4 and indicated that he did not appropriately evaluate appellant for possible
permanent impairment due to sensory loss in his legs or weakness in his ankles and feet.5
2

The Board also determined that appellant had not met his burden of proof to establish that he has more than a 36
percent permanent impairment of his penis, for which he received a schedule award. This matter is not currently
before the Board.
3

Section 8123(a) of the Federal Employees’ Compensation Act provides in pertinent part: “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.” 5 U.S.C. § 8123(a). 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. William C. Bush,
40 ECAB 1064, 1075 (1989). In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion
of such specialist, if sufficiently well rationalized and based upon a proper factual background, must be given special
weight. Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).
4

Neither the Act nor its implementing regulation provides for a schedule award for impairment to the back or to
the body as a whole. See Gordon G. McNeill, 42 ECAB 140, 145 (1990).
5

The Board noted, for example, that Dr. Levin did not make reference to the A.M.A., Guides to apply methods
for measuring ankle weakness deficits such as those found in Table 17-8. This table assigns impairment ratings for
weakness found upon various ankle motions. See A.M.A., Guides 532, Table 17-8. The Board further noted that the
reports of Dr. Slutsky did not support the Office’s determination as Dr. Slutsky actually indicated that Dr. Levin’s
calculation was not appropriate.

2

Therefore, the case was remanded to the Office for clarification of whether appellant had more
than a 10 percent permanent impairment of his left leg and a 0 percent permanent impairment of
his right leg. The facts and the circumstances of the case up to that point are set forth in the
Board’s prior decision and are incorporated herein by reference.
On remand to the Office, appellant and the case record were referred to Dr. Zohar Stark,
a Board-certified orthopedic surgeon, for evaluation of the permanent impairment of his legs.
On February 5, 2008 Dr. Stark provided a description of appellant’s factual and medical history
including the treatment of his back and legs since his July 6, 1998 injury. He undertook an
extensive review of the medical reports in the record including the results of magnetic resonance
imaging (MRI) scan testing of appellant’s back and an October 3, 2007 report of Dr. Frederick S.
Lieberman, an attending Board-certified orthopedic surgeon.6 Physical examination revealed
that appellant was able to walk with a reciprocating heel/toe gait although he complained of pain
in his thighs and back when ambulating. Dr. Stark indicated that examination of appellant’s mid
and lower back revealed a well-healed operative scar over the midline in the lower back with
tenderness on palpation over the midline and local tenderness over the paradorsal and
paralumbar musculature without spasm on palpation. Range of motion of the lumbosacral spine
was 40 degrees upon flexion and extension and lateral rotation were normal. The sitting root test
was negative and straight leg raising was 80 degrees bilaterally.
Dr. Stark indicated that there was no sensory deficit in appellant’s lower extremities and
found that there was no atrophy of the musculature of his lower extremities. There was no
reduced muscle power of the quadriceps muscles, extensor hallucis longus muscles or ankle
plantar flexors as all measured four over five upon manual muscle testing. Dr. Stark noted that
there was no tenderness over the joint lines of the hips, the McMurray, Apley, and Lachman tests
were negative, and there were no signs of varus or valgus instabilities. The motion of appellant’s
ankles was the same on both sides -- 25 degrees of plantar flexion and 20 degrees of dorsiflexion.
Dr. Stark determined that appellant reached maximum medical improvement by June 2003. He
found that, on physical examination, appellant had no restriction of motion, sensory deficits,
decreased strength or atrophy in his lower extremities. Dr. Stark indicated that, according to the
standards of the A.M.A., Guides, including Tables 17-6, 17-7, 17-8 and 17-37, appellant had a
zero percent permanent impairment of his right leg and a zero percent permanent impairment of
his left leg.
In a February 22, 2008 decision, the Office found that appellant did not meet his burden
of proof to establish that he has more than a 10 percent permanent impairment of his left leg and
a 0 percent permanent impairment of his right leg. It based its determination on the opinion of
Dr. Stark.

6

On October 3, 2007 Dr. Lieberman stated that the September 13, 2007 MRI scan testing showed maintained
discs from L1-2 to L5-S1. He indicated that sensory examination showed a mild right-sided L5 sensory deficit and a
mild right-sided anterior femoral cutaneous nerve sensory deficit. Dr. Lieberman did not provide any further details
of this sensory examination. He indicated that appellant had lower leg weakness but did not explain how the testing
was performed.

3

LEGAL PRECEDENT
The schedule award provision of the Act7 and its implementing regulations8 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, the Act does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.9
ANALYSIS
The Office accepted that appellant sustained lumbar and thoracic strains and lumbar
stenosis at L4-5 on July 6, 1998 and authorized multiple surgeries for bulging or herniated discs
at L3-4, L4-5 and LS-S1. It awarded appellant a schedule award for a 10 percent permanent
impairment of his left leg and determined that he had a 0 percent permanent impairment of his
right leg. The Office had based its schedule award determination on the opinions of Dr. Howard
Levin, a Board-certified neurologist. In an October 25, 2007 decision, the Board remanded the
case to the Office for further development of appellant’s entitlement to schedule award
compensation. The Board found that Dr. Levin served as an Office referral physician rather than
an impartial medical specialist and that his opinion on permanent impairment was not
sufficiently explained to constitute the weight of the medical evidence.10
In accordance with the remand instructions, the Office referred appellant and the case
record to Dr. Stark, a Board-certified orthopedic surgeon, for evaluation of the permanent
impairment of his legs. In a February 5, 2008 report, Dr. Stark properly found that appellant did
not have impairment of either leg under the standards of the A.M.A., Guides. As the report of
Dr. Stark provided the only evaluation which conformed with the A.M.A., Guides, it constitutes
the weight of the medical evidence.11 Therefore, the Office correctly found that there was no
7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404 (1999).

9

Id.

10

On appeal appellant’s attorney argued that after Dr. Levin was unable to clarify his opinion on permanent
impairment the case should have been referred to another impartial medical specialist. He made reference to
precedent that provided that, when the impartial specialist is unable to clarify or elaborate on his original report or if
his supplemental report is also vague, speculative, or lacking in rationale, the Office must submit the case record and
a detailed statement of accepted facts to a second impartial specialist for the purpose of obtaining his rationalized
medical opinion on the issue. See Bobby L. Jackson, 40 ECAB 593, 601 (1989). However, this precedent would not
be relevant to the facts of the present case as Dr. Levin served as an Office referral physician rather than an impartial
medical specialist.
11

See Bobby L. Jackson, 40 ECAB 593, 601 (1989). The record contains an October 3, 2007 report in which
Dr. Lieberman, an attending Board-certified orthopedic surgeon, indicated that appellant had sensory loss in his
right leg and weakness in both legs. However, he did not explain what tests were used to find these deficits, the
precise amounts of the deficits and how they were obtained according to the standards of the A.M.A., Guides.

4

evidence to show that appellant had more than a 10 percent permanent impairment of his left leg,
for which he received schedule award compensation, or more than a 0 percent permanent
impairment of his right leg.
Dr. Stark’s examination on February 5, 2008 revealed that appellant was able to walk
with a reciprocating heel/toe gait although he complained of pain in his thighs and back when
ambulating. He indicated that examination of appellant’s mid and lower back showed a wellhealed operative scar over the midline in the lower back with tenderness on palpation over the
midline and local tenderness over the paradorsal and paralumbar musculature without spasm on
palpation. Range of motion of the lumbosacral spine was 40 degrees upon flexion and extension
and lateral rotation were normal. The sitting root test was negative and straight leg raising was
80 degrees bilaterally. There was no reduced muscle power of the quadriceps muscles, extensor
hallucis longus muscles or ankle plantar flexors as all measured four over five upon manual
muscle testing. The motion of appellant’s ankles was the same on both side -- 25 degrees of
plantar flexion and 20 degrees of dorsiflexion.
Based on these findings, Dr. Stark properly determined that appellant did not have
sensory loss in his legs which stemmed from his employment-related back problems and that he
did not have range of motion, atrophy or weakness deficits in his legs under the standards of the
A.M.A., Guides. He noted that, in reaching this determination, he applied various tables of the
A.M.A., Guides, including Tables 17-7 and 17-8 regarding muscle weakness and Table 17-37
regarding sensory loss.12 For these reasons, the Office properly found that appellant does not
have more than a 10 percent permanent impairment of his left leg, for which he received
schedule award compensation, or more than a 0 percent permanent impairment of his right leg.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he has
more than a 10 percent permanent impairment of his left leg and a 0 percent permanent
impairment of his right leg.

12

See A.M.A., Guides 531-32, 552, Tables 17-7, 17-8 and 17-37. The Board notes that under Table 17-11
appellant also would not have any range of motion impairment when applying the ankle motion findings obtained by
Dr. Stark. See A.M.A., Guides 537, Table 17-11.

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
February 22, 2008 decision is affirmed.
Issued: May 21, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.F., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Fort Myers, FL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 17-2027
Issued: September 13, 2018

Case Submitted on the Record

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

On September 29, 2017 appellant filed a timely appeal from a June 28, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). The Board docketed this
appeal as No. 17-2027.
By decision dated November 10, 2015, OWCP terminated appellant’s wage-loss
compensation effective November 15, 2015. Appellant requested an oral hearing with OWCP’s
Branch of Hearings and Review and in an August 26, 2016 decision, OWCP’s hearing
representative directed OWCP to obtain a current position description from the employing
establishment with physical requirements and to compare the physical requirements of the current
position description to the restrictions of appellant’s treating physician to determine whether
appellant had established disability for work on or after November 5, 2015. OWCP did not fully
comply with these directives prior to issuing its December 14, 2016 merit decision. Appellant
requested reconsideration of the December 14, 2016 decision on June 12, 2017. By decision dated
June 28, 2017, OWCP denied appellant’s request for reconsideration of the merits of his claim
pursuant to 5 U.S.C. § 8128(a). Appellant appealed the June 28, 2017 decision to the Board.
The Board finds that as OWCP did not follow the August 26, 2016 directives of the hearing
representative, the case was not in posture for a merit decision on the issue of whether appellant
had established disability for work on or after November 5, 2015. As the December 14, 2016 merit

decision remains in an interlocutory posture, the June 28, 2017 non-merit decision is also in an
interlocutory posture. Thus, this case is not in posture for a decision by the Board.1 On return of
the case record, OWCP should comply with the order of the hearing representative. Following
this and such other development as deemed necessary, OWCP shall issue an appropriate merit
decision on the claim.
IT IS HEREBY ORDERED THAT the June 28, 2017 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action consistent with
this decision of the Board.
Issued: September 13, 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

1

Because OWCP has not appropriately developed the issue of whether appellant was capable of working full duty
as directed by its hearing representative prior to issuing its December 14, 2016 merit decision that matter is in an
interlocutory posture. See 20 C.F.R. § 501.2(c)(2) which provides, “The Board has jurisdiction to consider and decide
appeals from final decisions of OWCP in any case arising under FECA. The Board may review all relevant questions
of law, fact, and exercises of discretion (or failure to exercise discretion) in such cases…. There will be no appeal
with respect to any interlocutory matter decided (or not decided) by OWCP during the pendency of a case.” See also
C.D., Docket No. 17-1357 (issued May 4, 2018).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
DEPARTMENT OF NAVY, NAVAL AIR
SYSTEMS COMMAND, San Diego, CA,
Employer
__________________________________________

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

Docket No. 18-1432
Issued: March 15, 2019

Case Submitted on the Record

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

JURISDICTION
On July 17, 2018 appellant, through counsel, filed a timely appeal from a June 22, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $4,728.42 for the period August 18, 2016 through March 4, 2017 because he was
incarcerated for a felony conviction; and (2) whether OWCP properly determined that appellant
was at fault in the creation of the overpayment and, therefore, not subject to waiver of recovery of
the overpayment.
FACTUAL HISTORY
On November 21, 1980 appellant, then a 20-year-old aircraft mechanic sheet metal worker,
filed a traumatic injury (Form CA-1) alleging that he sustained low back injury when he slipped
on water in a restroom while in the performance of duty.3 OWCP initially accepted the claim for
lumbar strain, and in August 1983, expanded acceptance of the claim to include permanent
aggravation of lumbar degenerative disc disease. Appellant underwent series of authorized
surgical procedures including lumbosacral arthrodesis, lumbar fusion, and anterior osteotomy.
OWCP paid him wage-loss compensation on the periodic rolls.
Beginning August 15, 1985, OWCP provided appellant a series of Form EN1032s
requesting information with respect to employment activity, dependents, and receipt of any other
federal benefits in the preceding 15 months.4 As of August 2, 2000, the EN1032 forms also
requested information pertaining to fraud and felony offenses. The forms asked if the employee
had been incarcerated for any period during the past 15 months for any felony offense.
On June 14, 2016 appellant submitted an EN1032 form and responded “no” when asked if
he had been incarcerated for any period during the past 15 months for any felony offense that
resulted in a conviction under state or federal law.
By letter dated September 26, 2016, appellant notified OWCP that he was unable to attend
his scheduled medical appointment on October 4, 2016 because of a family exigency which was
taking him out of town. He requested a 120-day extension.
On February 17, 2017 OWCP was contacted via telephone by a correctional counselor
regarding appellant’s employment status and was notified that he was in prison.
By letter dated February 22, 2017, OWCP requested that appellant provide information
regarding his period of incarceration and whether or not he had been convicted of a felony.
Appellant did not respond.
Documents from the San Diego County Superior Court of California were submitted. In
San Diego County Superior Court Case No. SCD257434, appellant pled guilty to evading police
officers driving marked vehicles with lights and sirens on two separate occasions while driving
3

The present claim was assigned OWCP File No. xxxxxx294. Appellant has three prior traumatic injury claims
involving low back injuries. OWCP has administratively combined OWCP File Nos. xxxxxx294, xxxxxx524,
xxxxxx638, and xxxxxx052, with the present claim serving as the master file.
4

The cover letter is identified as a CA-1032 form, but the form requesting information is identified as EN1032.

2

recklessly and resisting an officer with force. His guilty plea was signed and submitted to the court
on December 23, 2014. The charges, as noted in the Charge Summary, are felonies. The period
of incarceration was from August 18, 2016 to November 14, 2017.
On May 11, 2018 OWCP made a preliminary determination that appellant received an
overpayment of compensation in the amount of $4,728.42 for the period August 18, 2016 through
March 4, 2017 because he was incarcerated on August 18, 2016 for a felony conviction.5 It
concluded that he was at fault in the creation of the overpayment because he accepted a payment
that he knew or reasonably should have known that he was not entitled to receive while
incarcerated for a felony conviction. OWCP further noted that appellant failed to report his guilty
plea to OWCP and had indicated that he could not attend a second opinion examination “due to
family exigency” when he was actually incarcerated, having knowingly withheld that information.
OWCP explained that regulations provide that an employee forfeits all rights to
compensation during the period of incarceration for a felony conviction. However, if the claimant
has eligible dependents, it would pay compensation to such dependents at a reduced rate during
the period of his incarceration by applying the percentages of 5 U.S.C. § 8133(a)(1) through (5) to
the claimant’s gross current entitlement.6 OWCP explained that appellant’s wife was the only
eligible dependent during the period of overpayment and compensation benefits should have been
reduced to 50 percent because of his felony conviction.7 Effective March 5, 2017, it adjusted
compensation benefits to reflect payment of 50 percent of gross entitlement payable to appellant’s
spouse as a qualifying dependent. OWCP explained that from August 18, 2016 through March 4,
2017, appellant had been paid $17,895.82 in temporary total disability at the 75 percent augmented
compensation rate, amounting to a net payment of $15,042.09. However, during that period, he
was incarcerated and his spouse was therefore entitled to only $14,167.40 compensation at the 50
percent reduced rate, resulting in $10,313.67 net compensation. Taking the difference of
$10,313.67 owed from the $15,042.09 appellant had received resulted in an overpayment of
$4,728.42 for the period August 18, 2016 through March 4, 2017. OWCP informed him of his
appeal rights and instructed him to complete an enclosed overpayment recovery questionnaire

5

OWCP noted that the full period of incarceration was August 18, 2016 through November 14, 2017. The period
of overpayment was August 18, 2016 through March 4, 2017 as compensation was adjusted beginning March 5, 2017
which reflected the 50 percent reduction of compensation for a dependent spouse as a result of appellant’s felony
conviction.
6

Appellant’s spouse is entitled to 50 percent of gross entitlement if there is no eligible dependent child. 5 U.S.C.
§ 8133(a)(1).
7

By letter dated May 9, 2018, OWCP notified appellant that his previously qualified dependent children were over
the age of 18. It informed him that, after the 18th birthday for an unmarried child, he must provide evidence that he
contributed towards their support and they were enrolled in a qualified educational program as a full-time student
beyond high school for each year between their 18th and 23rd birthdays. OWCP afforded appellant 30 days to submit
the requested information after which a decision would be made on his entitlement to augmented compensation on the
basis of a qualifying child. By decision dated August 15, 2018, it determined that he had not established entitlement
to dependency based on the children listed. OWCP noted that appellant failed to provide evidence in response to its
development letter.

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(OWCP-20) form and submit supporting financial documentation within 30 days. Appellant did
not respond.8
By decision dated June 22, 2018, OWCP finalized its preliminary overpayment
determination. It found that appellant was at fault in the creation of a $4,728.42 overpayment for
the period August 18, 2016 through March 4, 2017, because he was incarcerated for a felony and
knowingly accepted compensation which he was not entitled to receive. OWCP found him at fault
because he failed to provide information which he knew or should have known to be material and
because he accepted a payment he knew or reasonably should have known was incorrect. It
directed recovery by requiring that appellant pay the full amount of the overpayment within 30
days.9
LEGAL PRECEDENT -- ISSUE 1
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.10
The United States shall pay compensation for the disability of an employee resulting from
personal injury sustained while in the performance of duty.11 However, no benefits shall be paid
or provided to an individual during a period during which such individual is confined in a jail,
prison, or other penal institution or correctional facility pursuant to that individual’s conviction of
an offense that constituted a felony under applicable law.12
The limitation on the payment of compensation benefits to an employee convicted of a
felony unrelated to fraud in the application for or the receipt of benefits under FECA provides for
an exception when such individual has one or more dependents as defined under 5 U.S.C.
§ 8110(a).13 During the period of incarceration, benefits may be paid to such dependents based on

8
By decision dated May 31, 2018, OWCP suspended appellant’s compensation benefits, effective June 24, 2018
for failing to submit the EN1032 form, affidavit of earnings and employment as requested by OWCP on
April 11, 2018. It noted that, if he completed and returned an enclosed copy of the EN1032 form, his compensation
benefits would be restored retroactively to the date they were suspended.
9
OWCP noted that appellant was in receipt of compensation benefits from OWCP. However, his benefits were to
be suspended as of June 24, 2018 because he had failed to return the required Form CA-1032. OWCP advised that,
as appellant had appealed the suspension, should appellant’s compensation later be reinstated, it would review the
claim to determine if withholding money to apply the debt from his continuing compensation payments would be
warranted.
10

See 20 C.F.R. §§ 1.1-1.4.

11

5 U.S.C. § 8102(a).

12

Id. at § 8148(b)(1). See J.R., Docket No. 08-0767 (issued August 12, 2008).

13

Id. at § 8148(b)(3).

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the percentage of benefits payable to such individual as computed according to the percentages set
forth in 5 U.S.C. § 8133(a)(1) through (5).14
OWCP’s procedure manual provides that, in cases involving convictions for felonies
unrelated to claims under FECA, but which result in imprisonment, the claims examiner is to
suspend or adjust compensation benefits effective the date of imprisonment.15 When the employee
has eligible dependents, payment is to be calculated by applying the percentages of 5 U.S.C.
§ 8133(a)(1) through (5) to the claimant’s gross current entitlement, or 50 percent of gross current
entitlement to the spouse if there is no child.16 Under such circumstances, direct payment may be
made to the dependent for the periods of disability during the employee’s imprisonment.17
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received a $4,728.42
overpayment of compensation for the period August 18, 2016 through March 4, 2017 due to his
incarceration for a felony conviction.18
Section 8148(b) of FECA provides that no compensation shall be paid during a period a
person is confined to a penal institution pursuant to conviction for a felony offense.19 The record
in this case contains copies of court documents establishing that appellant entered guilty pleas to
nine felonies with his sentence effectively beginning on August 18, 2016.20 Appellant did not
notify OWCP of his incarceration and he, therefore, received full compensation benefits from
August 18, 2016 through March 4, 2017.21 Effective March 5, 2017, OWCP reduced his benefits
by 50 percent for adjustment to compensation payable to his dependent spouse under 5 U.S.C.
§ 8148(b)(3).22
The Board notes that the fact and amount of the overpayment are not in dispute.23 The
record reflects that from August 18, 2016 through March 4, 2017, no adjustment was made to
appellant’s compensation benefits while he was incarcerated.24 OWCP properly explained that he
14

Id.

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.18 (February 2013).

16

Id. at Chapter 2.1400.18(e).

17

Id.

18

R.S., Docket No. 17-1985 (issued March 23, 2018).

19

5 U.S.C. § 8148(b).

20

C.f. T.P., Docket No. 13-2078 (issued September 25, 2014).

21

See generally T.P., Docket No. 12-0097 (issued July 19, 2012).

22

Supra note 12.

23

E.V., Docket No. 17-2026 (issued July 11, 2018); J.R., Docket No. 08-0767 (issued August 12, 2008).

24

S.H., Docket No. 14-0421 (issued August 27, 2014).

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had received a net sum of $15,042.09 in compensation benefits during that period. In accordance
with the exception provided for individuals convicted of a felony unrelated to fraud in the receipt
of benefits under FECA, appellant’s spouse was entitled to only 50 percent of appellant’s gross
current entitlement as a dependent with no children.25 OWCP noted its calculations and reported
that appellant’s dependent spouse was entitled to $10,313.67 in net compensation during the period
in question. It subtracted the $10,313.67 from the $15,042.09 received, resulting in an
overpayment of $4,728.42. Thus, the Board finds that an overpayment of compensation in the
amount of $4,728.42 was created for the period August 18, 2016 through March 4, 2017.26
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA27 provides that an overpayment of compensation shall be
recovered by OWCP unless incorrect payment has been made to an individual who is without fault
and when adjustment or recovery would defeat the purpose of FECA or would be against equity
and good conscience.28 Thus, OWCP may not waive the overpayment of compensation unless
appellant was without fault.29 Adjustment or recovery must, therefore, be made when an incorrect
payment has been made to an individual who is at fault.30
On the issue of fault, section 10.433 of OWCP’s regulations, provides that an individual
will be found at fault if he or she has done any of the following:
(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 or she knew or should have known was
incorrect.31
With respect to whether an individual is without fault, section 10.433(b) of OWCP’s
regulations provide that whether or not OWCP determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances surrounding the

25

Supra note 15.

26

H.G., Docket No. 08-1094 (issued November 21, 2008).

27

5 U.S.C. § 8129(b).

28

Michael H. Wacks, 45 ECAB 791, 795 (1994).

29

Norman F. Bligh, 41 ECAB 230 (1989).

30

Diana L. Booth, 52 ECAB 370, 373 (2001); William G. Norton, Jr., 45 ECAB 630, 639 (1994).

31

20 C.F.R. § 10.433(a).

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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.32
ANALYSIS -- ISSUE 2
The Board finds OWCP properly determined that appellant was at fault in the creation of
the $4,728.42 overpayment and, therefore, ineligible for waiver of recovery of the overpayment.33
With respect to whether an individual is at fault in the creation of an overpayment, section
10.433(b) of OWCP regulations provide that whether OWCP determines that an individual was at
fault with respect to the receipt of an overpayment depends on the circumstances surrounding the
overpayment.34 The degree of care expected may vary with the complexity of those circumstances
and the individual’s capacity to realize that he or she was being overpaid.35
Appellant has not contested the fact or amount of overpayment or the finding of fault. The
Board notes that he is required to file EN1032 forms providing an affidavit of earnings and
employment for the previous 15 months. Beginning August 2, 2000, these EN1032 forms
requested information pertaining to fraud and felony offenses. Appellant last filed an EN1032
form on June 14, 2016 and responded “no” when asked if he had been incarcerated for any period
during the past 15 months for a felony offense that resulted in a conviction under state or federal
law. While he was not incarcerated at the time of his June 14, 2016 affidavit, he was aware or
should have been aware that a felony conviction could impact his compensation benefits as this
information was requested on the EN1032 forms beginning in August 2, 2000.36 Following his
incarceration on August 18, 2016, appellant submitted a September 26, 2016 letter informing
OWCP that he was unable to attend his scheduled medical appointment on October 4, 2016
because of a family exigency which was taking him out of town. In this instance, he made an
incorrect statement and withheld information that he knew or reasonably should have known to be
relevant.37 Appellant further failed to furnish information which he knew or should have known
to be material to OWCP.38 He did not contest the finding of fault or provide an explanation with
respect to OWCP’s overpayment determination. Thus, the Board finds that appellant is at fault in

32

Id. at § 10.433(b).

33

L.J., Docket No. 10-2322 (issued August 3, 2011).

34

See J.D., Docket No. 10-640 (issued December 17, 2010); Otha J. Brown, 56 ECAB 228 (2004); Karen K. Dixon,
56 ECAB 145 (2004).
35

See G.Z., Docket No. 16-0892 (issued May 19, 2017).

36

The Board notes that appellant did not submit the required April 11, 2018 EN1032 form for the prior 15 months,
resulting in the suspension of his benefits effective June 24, 2018.
37

T.O., Docket No. 12-0426 (issued July 23, 2012).

38

20 C.F.R. § 10.433(a).

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the creation of the overpayment and is ineligible for waiver of recovery of the overpayment.39
OWCP is required by law to recover the overpayment.40
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $4,728.42 for the period August 18, 2016 through
March 4, 2017. The Board further finds that appellant was at fault in the creation of the
overpayment and, therefore, ineligible for waiver of recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the June 22, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 15, 2019
Washington, DC

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

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

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

39

J.C., Docket No. 13-0726 (issued September 23, 2013).

40

With respect to whether OWCP properly required recovery of the overpayment of compensation by ordering
appellant to pay the full amount of the overpayment within 30 days, the Board’s jurisdiction is limited to reviewing
those cases where OWCP seeks recovery from continuing compensation benefits under FECA. Cheryl Thomas,
55 ECAB 610 (2004). As appellant’s compensation benefits were suspended as of June 24, 2018, the Board lacks
jurisdiction over the issue of recovery of the overpayment under the Debt Collection Act. Robert Ringo, 53 ECAB
258 (2001).

8