United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Evanston, IL, Employer
__________________________________________

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

Docket No. 18-0257
Issued: May 21, 2019

Case Submitted on the Record

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

JURISDICTION
On November 16, 2017 appellant, through counsel, filed a timely appeal from a
September 18, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3

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.

3
The Board notes that, following the September 18, 2017 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish permanent
impairment of her left lower extremity due to her accepted left ankle sprain; and (2) whether
appellant has established that the acceptance of her claim should be expanded to include additional
left lower extremity conditions, causally related to the accepted March 19, 2014 employment
injury.
FACTUAL HISTORY
On March 19, 2014 appellant, then a 39-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that, on March 19, 2014, she injured her left ankle in the performance
of duty. She stated that, while walking across a lawn, she stumbled over brick pavement and
twisted her ankle. Appellant continued to work following the March 19, 2014 incident, but in a
limited-duty capacity. On April 30, 2014 OWCP accepted her claim for left ankle sprain.
On May 3, 2014 appellant stopped work and filed claims for wage-loss compensation
(Form CA-7) alleging that no work was available within her restrictions. OWCP paid wage-loss
compensation on the supplemental rolls until she returned to full-time modified-duty work on
August 11, 2014. Appellant continued to receive medical treatment.
A May 29, 2014 left ankle magnetic resonance imaging (MRI) scan revealed sequelae of
partial thickness tear of the anterior talofibular (ATF) ligament, mild tendinosis of the posterior
tibial tendon, and small areas of bone marrow edema in the intermediate and lateral cuneiform
bones. The scan was negative for Achilles tendon tear.
In a July 2014 report, Dr. Harold T. Pye, an occupational medicine specialist, related that
on March 19, 2014 appellant injured her left ankle after she tripped over a concrete barrier while
delivering mail. He indicated that her condition slowly improved with conservative medical
management, but she continued to complain of persistent left ankle pain. Dr. Pye noted that a left
ankle MRI scan showed a partial thickness tear of the ATF ligament and tendinosis of the posterior
tibialis tendon. He reported diagnoses of left ankle sprain, left posterior tendon tendinitis, left ATF
ligament tear, mid-foot sprain, mid-foot contusion, thoracolumbar sprain, and left knee strain.4
On September 8, 2016 appellant filed a claim for a schedule award (Form CA-7).
By letter dated September 20, 2016, OWCP requested that appellant provide an impairment
rating in accordance with the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides).5 It afforded her 30 days to submit the
requested information.

4

Dr. Pye initially examined appellant on March 21, 2014. At the time, he identified a March 19, 2014 date of injury
when appellant slipped on a wet, uneven surface while delivering mail. Appellant lost her balance and twisted her left
knee, foot/ankle, and back. In an April 1, 2014 follow-up examination, Dr. Pye’s diagnoses included thoracolumbar
sprain, mid-foot sprain, and medial/lateral ankle sprain. He attributed appellant’s diagnoses to her employment
activity, noting that she stated she was “asymptomatic prior to injury.”
5

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

2

By letter dated November 9, 2016, appellant, through counsel, requested that OWCP
expand the acceptance of her claim. Counsel indicated that he was submitting supporting medical
documentation from Dr. Michael Smith, a Board-certified diagnostic radiologist, to show
additional conditions of sequelae of partial thickness tear of the ATF ligament, mild tendinosis of
the posterior tibial tendon, and small areas of bone marrow edema in the intermediate and lateral
cuneiform bones.
A February 23, 2016 left knee x-ray showed no acute abnormality and normal patellar
spurring. A similarly dated left knee MRI scan revealed patellar chondromalacia and a small joint
effusion, but was otherwise normal.
By decision dated December 6, 2016, OWCP denied appellant’s schedule award claim,
finding that she had not submitted sufficient evidence to establish permanent impairment of a
scheduled member or function of the body. It noted that she did not submit any evidence showing
measurable permanent impairment due to the accepted March 19, 2014 employment injury.
By letter dated December 13, 2016, appellant, through counsel, requested a hearing before
a representative of OWCP’s Branch of Hearings and Review. A hearing was held on
June 15, 2017.
Post-hearing, counsel resubmitted the November 9, 2016 letter requesting to expand the
acceptance of appellant’s claim to include additional lower extremity conditions. He also
resubmitted appellant’s May 9, 2014 and February 23, 2016 diagnostic studies.
By decision dated September 18, 2017, an OWCP hearing representative affirmed the
December 6, 2016 decision denying appellant’s schedule award claim. She found that the medical
evidence submitted did not address whether appellant sustained permanent impairment of a
scheduled member or function of the body due to her accepted left ankle condition. The hearing
representative further found that, while Dr. Pye diagnosed thoracolumbar sprain, left knee sprain,
mid-foot sprain, and mid-foot contusion, he did not establish causal relationship between the
diagnosed conditions and the accepted March 19, 2014 trip and fall.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA6 and its implementing federal regulations,7 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. FECA,
however, does not specify the manner in which the percentage of loss of a member shall be
determined. For consistent results and to ensure equal justice, the Board has authorized the use of
a single set of tables so that there may be uniform standards applicable to all claimants. 8 For
schedule awards after May 1, 2009, the impairment is evaluated under the sixth edition of the

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

3

A.M.A., Guides, published in 2009.9 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.10
It is the claimant’s burden of proof to establish permanent impairment of the scheduled
member or function as a result of an employment injury.11 OWCP’s procedures provide that, to
support a schedule award, the file must contain competent medical evidence which shows that the
impairment has reached a permanent and fixed state and indicates the date on which this occurred,
describes the impairment in sufficient detail so that it can be visualized on review, and computes
the percentage of impairment in accordance with the A.M.A., Guides.12
ANALYSIS -- ISSUE 1
The Board finds that appellant has not established permanent impairment of her left lower
extremity causally related to the March 19, 2014 employment injury.
Appellant submitted various left lower extremity diagnostic reports dated February 23,
2016 and May 29, 2014, which showed sequelae of a partial thickness ATF ligament tear, mild
tendinosis of the posterior tibial tendon, and bone marrow edema in the intermediate and lateral
cuneiform bones.
The Board finds that the medical evidence of record is insufficient to establish permanent
impairment of a scheduled member or function of the body due to the accepted left ankle sprain.
It is well established that before the A.M.A., Guides can be utilized, a description of permanent
impairment must be obtained from the claimant’s physician. The evaluation made by the attending
physician must include a description of the impairment including, where applicable, the loss in
degrees of active and passive motion of the affected member or function, the amount of any
atrophy or deformity, decreases in strength or disturbance of sensation, or other pertinent
descriptions of the impairment.13 In this case, the May 29, 2014 and February 23, 2016 diagnostic
reports do not establish that appellant’s condition had reached maximum medical improvement
(MMI), do not describe the impairment in sufficient detail so that it can be visualized on review,
and do not compute the percentage of impairment in accordance with the A.M.A., Guides.14
Accordingly, the Board finds that they are insufficient to establish appellant’s schedule award
claim.
On appeal, counsel contends that OWCP should have ruled on the motion to expand the
acceptance of appellant’s claim before the schedule award application was denied. As previously
9
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2
and Exhibit 1 (January 2010).
10

D.S., Docket No. 18-1140 (issued January 29, 2019); Isidoro Rivera, 12 ECAB 348 (1961).

11

D.F., Docket No. 18-1337 (issued February 11, 2019); Tammy L. Meehan, 53 ECAB 229 (2001).

12

Supra note 9 at Chapter 2.808.5 (March 2017).

13

D.M., Docket No. 11-775 (issued October 11, 2011); Peter C. Belkind, 56 ECAB 580 (2005).

14

Supra note 10.

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discussed, it is the claimant’s burden of proof to establish permanent impairment, including, where
applicable, the loss in degree of active and passive motion of the affected member or function, the
amount of any atrophy or deformity, decreases in strength or disturbance of sensation, or other
pertinent descriptions of the impairment.15 The Board has found for the reasons set forth above
that the evidence of record is insufficient to establishment entitlement to a schedule award.
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.
LEGAL PRECEDENT -- ISSUE 2
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.16
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.17 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.18 Additionally, it 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 appellant’s specific
employment factor(s).19
ANALYSIS -- ISSUE 2
The Board finds that appellant has not established that the acceptance of her claim should
be expanded to include partial thickness ATF ligament tear, mild tendinosis of the posterior tibial
tendon, and bone marrow edema in the intermediate and lateral cuneiform bones.
In attending physician’s reports (Form CA-20) dated March 21 and April 1, 2014, Dr. Pye
indicated that appellant’s diagnosed conditions were employment related because she had been
asymptomatic prior to the March 19, 2014 employment incident. The Board has held that an
opinion that a condition is causally related because the employee was asymptomatic before the
injury, without adequate rationale, is insufficient to establish causal relationship.20
In his July 2014 narrative report, Dr. Pye described the March 19, 2014 traumatic injury
and related that a left ankle MRI scan showed a partial thickness tear of the ATF ligament and
tendinosis of the posterior tibialis tendon. His diagnoses included left ankle sprain, left posterior
15

Supra note 9.

16

V.B., Docket No. 12-0599 (issued October 2, 2012); Jaja K. Asaramo, 55 ECAB 200 (2004).

17

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

18

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

19

Id.; Victor J. Woodhams, 41 ECAB 345, 352 (1989).

20

R.V., Docket No. 18-1037 (issued March 26, 2019); M.R., Docket No. 14-001 (issued August 27, 2014).

5

tendon tendinitis, left ATF ligament tear, mid-foot sprain, mid-foot contusion, and left knee strain.
Dr. Pye did not, however, provide any opinion on whether the additional left lower extremity
conditions were causally related to the accepted March 19, 2014 employment injury. The Board
has held that medical evidence that does not offer any opinion regarding the cause of an employee’s
condition is of no probative value on the issue of causal relationship.21
Likewise, the May 29, 2014 and February 23, 2016 left lower extremity diagnostic studies
are insufficient to establish causal relationship. The Board has held that diagnostic studies lack
probative value as they do not provide an opinion on causal relationship.22 For this reason, this
evidence is insufficient to meet appellant’s burden of proof.
Causal relationship is a medical question that must be established by probative medical
opinion from a physician.23 As appellant has not submitted such medical evidence in this case, the
Board finds she has not met her burden of proof to expand the acceptance of her 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.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she has
permanent impairment of her left lower extremity due to her accepted left ankle sprain. The Board
further finds that appellant has not established that the acceptance of her claim should be expanded
to include additional left lower extremity conditions, causally related to the accepted March 19,
2014 employment injury.

21

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

22

See A.B., Docket No. 17-0301 (issued May 19, 2017).

23

W.W., Docket No. 09-1619 (issued June 2010); David Apgar, 57 ECAB 137 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the September 18, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 21, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Stone Mountain, GA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 18-1333
Issued: March 22, 2019

Case Submitted on the Record

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

On June 25, 2018 appellant filed a timely appeal from a May 18, 2018 merit decision of
the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as No. 18-1333.
On October 6, 2017 appellant, then a 47-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that on August 3, 2017 he first became aware of a cervical
disc herniation causally related to his federal employment.1
By decision dated November 22, 2017, OWCP denied appellant’s occupational disease
claim, finding that the medical evidence of record did not demonstrate that the claimed medical
condition was causally related to accepted factors of his federal employment.
On December 18, 2017 appellant requested a review of the written record by an OWCP
hearing representative. By decision dated May 18, 2018, a hearing representative affirmed

1

Appellant has a prior traumatic injury claim under OWCP File No. xxxxxx432, which was accepted for left
shoulder strain, left trapezius strain, and cervical strain. He initially filed the present claim under OWCP File No.
xxxxxx432, but was informed that the current claim was a new occupational disease claim and should be filed
separately. The present claim was assigned OWCP File No. xxxxxx541.

OWCP’s November 22, 2017 decision and advised that OWCP might wish to combine the claims
for future review.
The Board has duly considered the matter and concludes that this case is not in posture for
decision. OWCP’s procedures provide that cases should be administratively combined when
correct adjudication of the issues depends on frequent cross-referencing between files.2 For
example, if a new injury case is reported for an employee who previously filed an injury claim for
a similar condition or the same part of the body, doubling is required.3
Herein, appellant filed a new occupational disease claim for the same part of the body, his
cervical spine, which OWCP assigned File No. xxxxxx541. OWCP thereafter denied the claim
for failure to establish causal relationship. The earlier claim for cervical injury, to which OWCP
assigned File No. xxxxxx432, is not presently before the Board. OWCP File No. xxxxxx541 does
not contain medical evidence found in File No. xxxxxx432. However, OWCP’s hearing
representative indicated that she had reviewed the medical evidence in File No. xxxxxx432 in
reaching her May 18, 2018 decision.
For a full and fair adjudication, the case must be returned to OWCP to combine the current
case record with File No. xxxxxx432.4 Following this and other such further development as it
deems necessary, OWCP shall issue a de novo decision.

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8(c)
(February 2000).
3

Id.; K.T., Docket No. 17-0432 (issued August 17, 2018).

4

Id.

2

IT IS HEREBY ORDERED THAT the May 18, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action consistent with
this order of the Board.
Issued: March 22, 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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Dallas, TX, Employer
__________________________________________

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

Docket No. 10-2061
Issued: May 19, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 10, 2010 appellant filed a timely appeal from the May 20, 2010 merit decision
of the Office of Workers’ Compensation Programs concerning entitlement to schedule award
compensation. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she has more than
a five percent permanent impairment of her right arm and a five percent permanent impairment
of her left arm, for which she received a schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
In November 2007, the Office accepted that appellant, then a 54-year-old mail processing
clerk, sustained bilateral carpal tunnel syndrome due to her repetitive work duties over time.2
In an April 29, 2008 report, Dr. Louise Lamarre, an attending Board-certified family
practitioner, stated that appellant reported that at times her right hand became completely numb,
mainly in the median distribution (thumb, index and middle digits), to the extent that the
condition interfered with activity. Her left upper extremity displayed symptoms to a lesser
degree. Dr. Lamarre noted that appellant had a cervical injury in 2004 which required surgery
and rehabilitation. Upon physical examination, the flexion of appellant’s hands had diminished
and was incomplete on the right side with the index and little fingers unable to completely flex.
The left hand had a normal range of motion.3 Dr. Lamarre diagnosed bilateral carpal tunnel
syndrome (right more than left) and listed the date of maximum medical improvement as
April 29, 2008. She provided an opinion that, under the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (5th ed. 2001) appellant had a 22
percent permanent impairment of her right arm and a 9 percent permanent impairment of her left
arm. These impairment values were due to sensory and motor deficits associated with the
median nerves.
In a May 5, 2009 report, Dr. John A. Sklar, a Board-certified physical medicine and
rehabilitation physician serving as an Office referral physician, noted that appellant reported
having difficulty bending the third digit on her right hand and experiencing pain at the base of
the third, fourth and fifth digits on the right. Appellant was unwilling to have surgery due to her
diabetes condition and possible poor wound healing. Upon physical examination, she had
generalized tenderness of the neck, shoulders, arms, and hands and there was some tenderness of
the small joints of the fingers. Dr. Sklar found that appellant had generalized decreased range of
motion in the wrists with flexion and extension to 50 degrees, radial deviation to 10 degrees and
ulnar deviation to 25 degrees. Range of motion was limited in the right middle and index finger
without evidence of triggering and there was generalized decreased strength in both upper
extremities secondary to pain. Two-point discrimination was eight to nine millimeters in the
right hand in both the median and ulnar distributions and two-point discrimination was six
millimeters on the left. Appellant had generalized chronic pain in the upper extremities and
hands, possibly secondary to nonwork-related arthritis, which appeared to cause some loss
motion of the wrist and right middle and index fingers. Dr. Sklar noted that appellant had
electro-diagnostically confirmed carpal tunnel syndrome and that she might have peripheral
neuropathy due to diabetes as two-point discrimination was worse than expected in both hands.

2

It appears from the record that appellant had previously sustained a work-related cervical sprain and displaced
cervical disc in November 2004.
3

Dr. Lamarre indicated that appellant had definite sensory deficit and hypoesthesia in the median distribution on
the right side, not acute in nature but recurring consistently with activity. Her left upper extremity had some
hypoesthesia but it was much less pronounced in the median distribution. Appellant’s grip testing was 20 pounds on
the left side and 10 pounds on the right side and she had a very strong positive Tinel’s sign on the right side and
mild one on the left side.

2

Dr. Sklar advised that appellant reached maximum medical improvement on April 29,
2008 and, under the sixth edition of the A.M.A., Guides (6th ed. 2009), entrapment/compression
neuropathy such as carpal tunnel syndrome was evaluated under Table 15-23 (Entrapment/
Compression Neuropathy Impairment) on page 449. He stated that for the right arm appellant
fell under grade modifier 1 for test findings as there was a conduction delay without evidence of
a motor conduction block. Appellant fell under grade modifier 3 for history due to constant
symptoms and grade modifier 2 for physical findings due to decreased sensation. These grades
were averaged to two which meant that overall she fell under grade modifier 2 with a default
rating value of five. Dr. Sklar determined that appellant had a moderate functional impairment
which fell under the same grade as the overall grade modifier 2 for her condition so there was
zero score adjustment for this category. Appellant had a five percent permanent impairment of
her right arm. For the left arm, she fell under grade modifier 1 for test findings, grade modifier 3
for history, and grade modifier 1 for physical findings. These grades were averaged to 1.66
which, when rounded up to 2, meant that overall appellant fell under grade modifier 2 with a
default rating value of five. The functional modification calculation was the same for the left
arm as for the right arm so there was zero score adjustment for this category. Therefore,
appellant had a five percent permanent impairment of her left arm.4
On May 22, 2009 Dr. Ronald H. Blum, a Board-certified orthopedic surgeon serving as
an Office medical adviser, stated that appellant reached maximum medical improvement on
April 29, 2009. He indicated that, on the right side, application of Table 15-23 of the sixth
edition of the A.M.A., Guides showed that appellant fell under grade modifier 1 for test findings
grade modifier 3 for history and grade modifier 2 for physical findings. Adding the grade
modifiers to six and then dividing by three meant that appellant fell under grade modifier 2 with
a default value of five percent. Appellant’s score on the functional scale fell under grade
modifier 2 and therefore there was no adjustment to the default value of five percent. Dr. Blum
concluded that appellant had a five percent permanent impairment of her right arm. On the left
side, application of Table 15-23 showed that appellant fell under grade modifier 1 for test
findings, grade modifier 3 for history and grade modifier 1 for physical findings. Averaging the
grade modifiers (the average of 1.66 rounded up to 2) meant that she fell under grade modifier 2
with a default value of five percent. Appellant’s score on the functional scale fell under grade
modifier 2 and again there was no adjustment to the default value of five percent. Dr. Blum
concluded that appellant had a five percent permanent impairment of her left arm.
In a May 20, 2010 decision, the Office granted appellant schedule awards for a five
percent permanent impairment of her left arm and a five percent permanent impairment of her
right arm.

4

Dr. Sklar indicated that appellant had arthritis of her arms which was not work related, so no additional
impairment was granted for loss of range of motion which was not part of the accepted condition, bilateral carpal
tunnel syndrome.

3

LEGAL PRECEDENT
The schedule award provision of the Act5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, 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.7 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.8
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.9 In
Table 15-23, grade modifiers 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.10
ANALYSIS
The Office accepted that appellant, then a 54-year-old mail processing clerk, sustained
bilateral carpal tunnel syndrome due to her repetitive work duties over time. In a May 20, 2010
decision, it granted her a schedule award for a five percent permanent impairment of her left arm
and a five percent permanent impairment of her right arm. The Office based its schedule award
on the opinions of Dr. Sklar, a Board-certified physical medicine and rehabilitation physician
serving as an Office referral physician, and Dr. Blum, a Board-certified orthopedic surgeon
serving as an Office medical adviser.
In a May 5, 2009 report, Dr. Sklar, discussed his examination of appellant and provided
an opinion that she had a five percent permanent impairment of her right arm and a five percent
permanent impairment of her left arm under the standards of the sixth edition of the A.M.A.,
Guides. In a May 22, 2009 report, Dr. Blum addressed the findings of record, including those
contained in Dr. Sklar’s May 5, 2009 report, and also performed a calculation finding that
appellant had a five percent permanent impairment of her right arm and a five percent permanent
impairment of her left arm under the standards of the sixth edition of the A.M.A., Guides.
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404 (1999).

7

Id.

8

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

9

See A.M.A., Guides 449, Table 15-23.

10

Id. at 448-50.

4

The Board finds that Dr. Sklar and Dr. Blum properly applied the standards of the sixth
edition of the A.M.A., Guides to reach their conclusion about appellant’s permanent arm
impairment.
For each arm, Dr. Sklar and Dr. Blum properly made reference to Table 15-23
(Entrapment/Compression Neuropathy Impairment) on page 449 of the sixth edition of the
A.M.A., Guides.11 They chose grade modifiers from the table for the various categories,
including test findings, history and physical findings. Dr. Sklar and Dr. Blum then averaged the
grade modifiers and chose the default value of five percent for the grade modifier 2 category to
conclude that appellant had a five percent impairment. They found that in each arm appellant’s
score on the functional scale fell under grade modifier 2 and there was no adjustment to the
default value of five percent.12
The Board notes that there is no medical evidence of record to establish more than a five
percent permanent impairment of each arm, for which appellant received schedule award
compensation. On appeal appellant argued that the Office did not give proper weight to the
impairment ratings calculation of Dr. Lamarre, an attending Board-certified family practitioner.
In her April 29, 2008 report, Dr. Lamarre, an attending Board-certified family practitioner,
indicated that appellant had a 22 percent permanent impairment of her right arm and a 9 percent
permanent impairment of her left arm under the fifth edition of the A.M.A., Guides. However,
appellant’s impairment was appropriately evaluated under the standards of the sixth edition of
the A.M.A., Guides as the May 20, 2010 Office decision granting schedule award compensation
was issued after May 1, 2009, the effective date of the sixth edition.13
For these reasons, the Office properly declined to award appellant additional schedule
award compensation.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she has
more than a five percent permanent impairment of her left arm and a five percent permanent
impairment of her right arm, for which she received a schedule award.

11

A.M.A., Guides 449, Table 15-23 (6th ed. 2009).

12

Id.

13

See supra note 6. On appeal appellant also argued that the Office impermissibly referred appellant to Dr. Sklar.
However, at the time of the referral to Dr. Sklar, additional clarification was needed regarding appellant’s arm
impairment that had not been provided by any attending physician. Appellant claimed that Dr. Sklar and Dr. Blum
did not take into account her preexisting cervical condition, but the effects of this condition were considered in
conjunction with the grade modifier scores for test findings, history and physical findings under Table 15-23.

5

ORDER
IT IS HEREBY ORDERED THAT the May 20, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 19, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Indianapolis, IN, Employer
__________________________________________

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Appearances:
Ronald Adams, for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1359
Issued: November 10, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 22, 2016 appellant, through her representative, filed a timely appeal from a
May 9, 2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As
more than 180 days elapsed from March 30, 2015, the date of the most recent OWCP merit
decision to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act2
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of
appellant’s claim.

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 OWCP properly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.3 On March 23, 2013 appellant, then a
47-year-old letter carrier, filed an occupational disease claim (Form CA-2) alleging a right shin
strain and anterior compartment syndrome in the performance of duty. She stated that the pain
began two hours into her route and intensified as she worked. Appellant first became aware of
her condition and its relation to her employment on March 19, 2013. She stopped work on
March 20, 2013.
In a decision dated September 18, 2014, the Board affirmed OWCP’s March 12, 2014
decision, finding that appellant had not submitted sufficient medical evidence to establish a right
leg injury causally related to factors of her employment. The facts and circumstances of the
case, as set forth in the prior decision, are incorporated herein by reference.
By letter dated January 9, 2015, appellant, through her representative, requested
reconsideration with OWCP following the Board’s September 18, 2014 decision and submitted
new evidence.
In a December 22, 2014 report, Dr. Melanie Sanders, a Board-certified orthopedic
surgeon, advised that she began treating appellant on March 20, 2014. She indicated that she
was unable to provide an opinion on causation because she did not have “a complete factual
background as a subsequent treating physician, especially 20 months after the onset of
symptoms.” Dr. Sanders explained that the anterior tibial tendon typically becomes inflamed
secondary to repetitive stress and not a single traumatic event. She noted that walking, carrying
weight, climbing stairs, walking inclines, walking uneven terrains, and changes in activity levels
could cause inflammation or degeneration. Dr. Sanders advised that the description of
appellant’s symptoms was consistent with anterior tibial tendon inflammation and that it could
definitely occur during the course of normal walking, without misstep or acute injury. She
further noted that the duties of a mail carrier would be consistent with activities that could injure
the tendon.
By decision dated March 30, 2015, OWCP denied modification of its prior decision.
On June 5, 2015 appellant retired from the employing establishment.
On February 9, 2016 appellant requested reconsideration and submitted new evidence. In
a January 26, 2016 report, Dr. Pamela Lynch, a Board-certified family practitioner, advised that
she saw appellant on March 22, 2013 for a well visit. She stated that appellant told her that she
hurt her right foot and shin at work two hours into her route. Appellant related going to an
immediate care center which referred her to an orthopedist’s office where she saw a physician
3

Docket No. 14-1076 (issued September 18, 2014).

2

assistant. She related that she wanted to see a physician that would do workers’ compensation.
Dr. Lynch noted that appellant thereafter was seen by a specialist over the next few years and
was diagnosed with anterior tibial tendinitis. She stated: “[T]his diagnosis is a result of
repetitive stress common to walking excessively on uneven terrain, climbing stairs, and walking
inclines which is typical of [appellant’s] job duties at the time of injury.” Dr. Lynch advised that
“an additional factor to the diagnosis was the added weight of the saddle bag appellant carried
while walking her route.” She related that appellant had a “complicated course including nerve
injury and has never recovered function from this unfortunate series of events.”
By decision dated May 9, 2016, OWCP denied appellant’s request for reconsideration. It
found that Dr. Lynch’s report was irrelevant and immaterial as it merely repeated the history as
told by appellant.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4 its
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.5 To be entitled to a merit review of its decision
denying or terminating a benefit, a claimant’s application for review must be received within one
year of the date of that decision.6 When a claimant fails to meet one of the above standards,
OWCP will deny the application for reconsideration without reopening the case for review on the
merits.7
ANALYSIS
In a March 30, 2015 merit decision, OWCP denied appellant’s claim because evidence of
record had not established that the diagnosed condition was causally related to factors of her
employment. Appellant submitted a timely request for reconsideration received by OWCP on
February 9, 2016, which was denied.
The Board finds that OWCP properly denied appellant’s request for reconsideration. The
underlying issue in this case is whether appellant established that factors of her employment
caused the diagnosed condition. This is a medical issue. In support of reconsideration, appellant
submitted the January 26, 2016 report from Dr. Lynch. Dr. Lynch advised that appellant related
a history of hurting her right foot and shin at work while walking at work. She summarized the
course of appellant’s treatment and noted that she was diagnosed with anterior tibial tendinitis.
Dr. Lynch observed that this condition could result from repetitive stress common to walking
4

Under section 8128 of FECA, the Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
5

20 CFR § 10.606(b)(3).

6

Id. at § 10.607(a).

7

Id. at § 10.608(b).

3

excessively on uneven terrain, climbing stairs, and walking inclines which was typical of
appellant’s job. However, while she noted appellant’s work duties and indicated that her
diagnosis was consistent with job duties. Dr. Lynch does not offer a specific opinion as to
whether appellant’s specific job duties caused or aggravated the diagnosed condition, her report
is not relevant.8
Furthermore, appellant neither showed that OWCP erroneously applied or interpreted a
specific point of law nor advanced a relevant legal argument not previously considered by
OWCP. Because she failed to meet one of the standards enumerated under section
10.606(b)(3) of OWCP’s regulations, she was not entitled to further merit review of her claim.
On appeal appellant argued that OWCP’s procedures provides that “rationalized medical
opinion from a physician not previously of record requires a merit review when the denial rested
on medical issues.”9 However, as noted new evidence must not only be new, but relevant and
pertinent. The Board finds that the newly submitted evidence was not relevant as Dr. Lynch did
not offer a specific opinion as to whether job duties caused or aggravated the diagnosed
condition.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

8

See Darletha Coleman, 55 ECAB 143 (2003) (evidence that does not address the particular issue involved does
not constitute a basis for reopening a case).
9

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsideration, 2.1602.6(b)(2) (October 2011).

4

ORDER
IT IS HEREBY ORDERED THAT the May 9, 2016 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 10, 2016
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bennettsville, SC, Employer
__________________________________________

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

Docket No. 12-1292
Issued: January 9, 2013

Case Submitted on the Record

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

JURISDICTION
On May 29, 2012 appellant filed a timely appeal of the April 27, 2012 merit decision of
the Office of Workers’ Compensation Programs (OWCP), which denied her claim. Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the case.2
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
traumatic injury in the performance of duty.

1
2

5 U.S.C. §§ 8101-8193.

Following issuance of the December 13, 2011 decision, appellant submitted new evidence to OWCP. The
Board may not consider such evidence for the first time on appeal. See 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On June 29, 2011 appellant, then a 65-year-old rural carrier, filed a traumatic injury
claim, alleging that on June 7, 2011 her mail truck was struck by a gravel truck and she sustained
back, neck and hip injuries. She stopped work on June 7, 2011. An employing establishment
accident report noted that, on June 7, 2011, appellant was driving her mail truck. It was struck
by a gravel truck which damaged the front bumper, fender and driver’s side door of her
automobile.
Appellant came under the treatment of Dr. Raymond Stroup, a chiropractor, from June 8
to 27, 2011. Dr. Stroup treated her for cervical, thoracic and lumbar pain. In return to work slips
dated June 8 to 27, 2011, he noted that appellant was totally disabled from June 7 to
July 5, 2011. In duty status reports dated June 23 and 27, 2011, Dr. Stroup diagnosed cervical,
thoracic, lumbar sprain/strain, sciatica, cervicobrachial syndrome and headaches and advised
appellant was disabled. He did not address the June 7, 2011 incident.
On July 1, 2011 OWCP advised appellant of the evidence needed to establish her claim.
It noted that she had been treated by a chiropractor but advised that a chiropractor was not
recognized as a physician under FECA unless a spinal subluxation was diagnosed by x-ray.
On August 8, 2011 OWCP denied appellant’s claim on the grounds that the evidence was
insufficient to establish that she sustained an injury as alleged.
On September 2, 2011 appellant requested reconsideration. She explained that on June 7,
2011 she was delivering mail when a gravel truck struck her truck. The next morning, appellant
had back and right hip pain and sought chiropractic treatment. She noted being treated for hip
arthritis before the work accident.
In return to work slips dated June 8 to July 12, 2011, Dr. Stroup noted that appellant was
totally disabled from June 7 to July 5, 2011. On June 8, 2011 he treated her for neck and back
pain after the June 7, 2011 accident. Appellant reported being struck by a gravel truck on the
driver’s side and having headaches and neck, mid back, low back and right leg pain. Dr. Stroup
noted reduced range of motion of the cervical, thoracic and lumbosacral spine with pain. He
stated that two x-rays of the cervical and lumbar spine were performed which revealed
osteoarthritis, age consistent findings of the cervical and lumbar spine with vertebral
subluxations at C1, C6, C7, T1, T2, T11, T12, L4, L5 and S1. Dr. Stroup noted decreased range
of motion for the cervical, thoracic and lumbar spines. He noted objective findings of vertebral
subluxations at C1, C6, C7, T1, T2, T11, T12, L4, L5 and S1. Dr. Stroup diagnosed cervical,
thoracic, lumbar sprain/strain, sciatica, cervicobrachial syndrome and headaches and advised that
appellant was undergoing treatment and was disabled from work.
Appellant was also treated by Dr. Robin C. Shealy, a family practitioner, on August 19,
2011, for severe pain in the right leg and hip. Dr. Shealy noted x-rays revealed severe
degenerative changes of the right hip, subchondral sclerosis and cyst formation of the femoral
head. She treated appellant on July 29, 2011 after a June 7, 2011 motor vehicle accident for
worsening pain in the right hip. Appellant reported that the impact of the truck caused injury to

2

her hip. Dr. Shealy opined that the motor vehicle accident aggravated appellant’s chronic
condition.
In an October 25, 2011 decision, OWCP found that the June 7, 2011 incident occurred as
alleged. The claim was denied because of insufficient medical evidence to establish that the
incident caused an injury.
On November 25, 2011 appellant requested reconsideration. She submitted a discharge
summary from Dr. Neil A. Conti, a Board-certified orthopedic surgeon, who treated her for
advanced right hip osteoarthritis. In a September 27, 2011 surgical report, he performed a right
total hip replacement and diagnosed right hip osteoarthritis. On October 13, 2011 Dr. Conti
noted that appellant was progressing well and she was able to fully bear weight. He diagnosed
anatomic alignment of right hip status post total hip arthroplasty.
In a decision dated January 11, 2012, OWCP denied the claim finding that causal
relationship was not established.
On January 24, 2012 appellant requested reconsideration. She submitted a January 24,
2012 report from Dr. Shealy who noted x-rays revealed severe right hip degenerative changes,
subchondral sclerosis and cyst formation of the femoral head. Dr. Shealy treated appellant on
July 29, 2011 after a June 2011 motor vehicle accident with complaints of worsening pain in the
right hip. She opined that the motor vehicle accident aggravated appellant’s chronic condition.
Dr. Shealy advised that appellant took early retirement and underwent right hip replacement
surgery.
In a decision dated February 24, 2012, OWCP denied modification of the January 11,
2012 decision.
On March 30, 2012 appellant requested reconsideration. She submitted a March 13, 2012
report from Dr. Shealy who noted x-rays revealed severe degenerative changes of the right hip,
subchondral sclerosis and cyst formation of the femoral head. Dr. Shealy noted appellant’s
complaints of worsening right hip and leg pain after a June 7, 2011 motor vehicle accident. She
opined to a degree of medical certainty that the hip condition was permanently aggravated by the
accident. Dr. Shealy noted that the natural progression of the hip condition would not have
progressed to this level.
In a decision dated April 27, 2012, OWCP denied modification of the prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing 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 filed within the applicable time limitation
of FECA, that an injury was sustained in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed is causally related to the

3

employment injury. 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.3
To determine whether an employee sustained an injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components which must be considered in conjunction with one another.
The first component to be established is that the employee actually experienced the employment
incident which is alleged to have occurred.4 The second component of fact of injury is whether
the employment incident caused a personal injury and generally can be established only by
medical evidence. To establish a causal relationship between the condition, as well as any
attendant disability claimed and the employment event or incident, the employee must submit
rationalized medical opinion evidence, based on a complete factual and medical background,
supporting such a causal relationship.5
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant.6 The weight of medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested and the medical rationale expressed
in support of the physician’s opinion.7
ANALYSIS
OWCP accepted that appellant worked as a rural carrier and on June 7, 2011 her mail
truck was struck by a gravel truck while in the performance of duty. Appellant was diagnosed
with degenerative changes of the right hip, subchondral sclerosis and cyst formation of the
femoral head. The Board finds that appellant has not submitted sufficient medical evidence to
establish that her right hip condition was caused or aggravated by the June 7, 2011 incident. She
did not submit a rationalized medical report from a physician sufficiently explaining how the
June 7, 2011 fall caused or aggravated a diagnosed medical condition.
Appellant submitted several reports from Dr. Stroup, a chiropractor, who noted that
x-rays of the cervical and lumbar spine were performed on June 8, 2011 using routine weight
bearing spinal projections. They revealed osteoarthritis and age consistent findings of the
3

Gary J. Watling, 52 ECAB 357 (2001).

4

Michael E. Smith, 50 ECAB 313 (1999).

5

Id.

6

Leslie C. Moore, 52 ECAB 132 (2000).

7

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

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cervical and lumbar spine. Dr. Stroup diagnosed vertebral subluxations at C1, C6, C7, T1, T2,
T11, T12, L4, L5 and S1.8 In a June 8, 2011 report, he noted treating appellant for neck and
back pain after a work accident on June 7, 2011 when her mail truck was struck by a gravel
truck. In reports dated June 9 to July 12, 2011, Dr. Stroup noted findings that included vertebral
subluxations at C1, C6, C7, T1, T2, T11, T12, L4, L5 and S1. While he provided some general
support for causal relationship, he did not provide medical rationale explaining the basis of his
conclusion.9 Without any explanation or rationale for the conclusion reached, such report is
insufficient to establish causal relationship. The reports are insufficient to meet appellant’s
burden of proof. Other reports from Dr. Stroup are also insufficient to establish the claim as he
did not address how the June 7, 2011 work incident caused or aggravated any spinal
subluxation.10
Appellant submitted reports from Dr. Shealy dated August 19, 2011 and
January 24, 2012. She noted initially treating appellant on March 29, 2011 for severe pain in the
right leg and hip. Dr. Shealy noted x-rays revealed severe degenerative changes of the right hip,
subchondral sclerosis and cyst formation of the femoral head. She treated appellant on July 29,
2011 after the accepted motor vehicle accident for complaint of worsening right hip pain.
Dr. Shealy opined that the motor vehicle accident aggravated the chronic hip condition. In a
March 13, 2012 report, she noted treating appellant on July 29, 2011 after her work-related
motor vehicle accident and opined to a degree of medical certainty that the hip condition was
permanently aggravated by the accident. Dr. Shealy stated that the natural progression of
appellant’s hip condition would not have progressed to this level. The Board finds that, although
she supported causal relationship, she did not provide adequate medical rationale explaining the
basis of her opinion regarding causal relationship.11 Dr. Shealy did not provide a full history of
appellant’s treatment for degenerative right hip disease or adequately explain the process by
which the accepted incident contributed to appellant’s preexisting osteoarthritis of the right hip.
Reports from Dr. Conti are insufficient to establish the claim as they did not provide a
history of injury12 or specifically address whether appellant had a diagnosed medical condition
that was causally related to her accepted employment incident.13 OWCP properly found that
appellant did not meet her burden of proof to establish her claim.

8

Section 8101(2) of FECA provides that chiropractors are considered physicians “only to the extent that their
reimbursable services are limited to treatment consisting of manual manipulation of the spine to correct a
subluxation as demonstrated by x-ray to exist and subject to regulation by the Secretary.” As the record shows that
Dr. Stroup reviewed x-rays in diagnosing a spinal subluxation, he is considered a physician under FECA
9

Supra note 6.

10

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
11

Jimmie H. Duckett, supra note 6.

12

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).
13

Supra note 9.

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On appeal, appellant asserts that she submitted sufficient medical evidence to support that
she sustained a work-related injury on June 7, 2011. As noted, the medical evidence does not
provide a rationalized opinion explaining the causal relationship between her right hip condition
and the June 7, 2011 work incident.
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 did not meet her burden of proof to establish that her
claimed conditions were causally related to her employment.
ORDER
IT IS HEREBY ORDERED THAT the April 27, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 9, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
DEPARTMENT OF THE NAVY, PEARL
HARBOR NAVAL SHIPYARD, HI, Employer
__________________________________________

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

Docket No. 08-720
Issued: December 23, 2008

Case Submitted on the Record

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

JURISDICTION
On November 28, 2007 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ nonmerit decision October 18, 2007 which denied his request for
reconsideration on the grounds that it was not timely filed and failed to establish clear evidence
of error. Because more than one year has elapsed from the last merit decision dated
December 20, 2002 to the filing of this appeal, the Board lacks jurisdiction to review the merits
of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.1
ISSUE
The issue is whether the Office properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that it was untimely filed and failed to show clear
evidence of error.
1

According to Office procedure, the one-year period for requesting reconsideration begins on the date of the
original Office decision, but the right to reconsideration within one year also accompanies any subsequent merit
decision on the issues, including any merit decision by the Board. Federal (FECA) Procedure Manual, Part 2 -Claims, Reconsiderations, Chapter 2.1602.3b (June 2002).

FACTUAL HISTORY
This case has been before the Board on five occasions. In a July 10, 1989 decision, the
Board found that an impartial medical examiner’s report was insufficient to constitute the weight
of the medical opinion evidence as it lacked rationale and was not based on a proper factual
background. The Office did not properly terminate appellant’s compensation as he could not
return to his date-of-injury position.2 It reinstated appellant’s compensation benefits. The Office
subsequently terminated his benefits by decision dated January 26, 1998. The Board affirmed
the Office’s decision on June 16, 2000.3 The Board further found that appellant failed to
establish entitlement to continuing compensation benefits on or after February 1, 1998, the date it
terminated his benefits.
Following the Board’s June 16, 2000 decision, appellant submitted additional medical
evidence and requested reconsideration. By decision dated December 18, 2000, the Office
denied his request as untimely and did not establish clear evidence of error. Appellant appealed
this decision to the Board by letter dated March 16, 2001. In a September 18, 2001 order
granting remand,4 the Board granted the Director’s motion to remand the case for the Office to
consider whether to reopen appellant’s claim on the merits.
In a decision dated November 15, 2001, the Office denied modification of its decision
terminating benefits. The medical evidence submitted was insufficient to overcome the weight
of the impartial medical examiner, Dr. Bruce E. Bradley, a Board-certified orthopedic surgeon.
Appellant requested reconsideration on January 22, 2002 and, by decision dated April 12, 2002,
the Office again denied modification of its prior decisions. In a December 20, 2002 decision,5
the Board found that reports of Dr. Bradley J. Watters, a Board-certified orthopedic surgeon,
were not based on a complete medical history and did not provide an opinion regarding
appellant’s ability to perform his date-of-injury position. The Board found that appellant did not
establish continuing disability on or after February 1, 1998. The Board also found that appellant
had no more than 12 percent impairment of his left lower extremity. The case was remanded for
further development regarding appellant’s entitlement to additional medical benefits. The Board
subsequently reviewed appellant’s claim on July 20, 20056 and found that the Office properly
declined his requests for reconsideration of the merits as they were not timely filed and did not
establish clear evidence of error. The facts and history of the case as set forth in the Board’s
prior decisions are adopted herein by reference.

2

David Levin, 40 ECAB 1076 (1989).

3

Docket No. 99-1019 (issued June 16, 2000).

4

Docket No. 01-1194 (issued September 18, 2001).

5

Docket No. 02-1925 (issued December 20, 2002).

6

Docket No. 05-768 (issued July 20, 2005).

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By decision dated July 21, 2006, the Office denied appellant’s request for reconsideration
as untimely and found that he did not establish clear evidence of error.7
On July 10, 2007 appellant again requested reconsideration before the Office. He
contended that the medical evidence had not been properly considered. In an August 24, 2000
report, Dr. Rick Dickson, a Board-certified orthopedic surgeon, noted appellant’s history of
injury and diagnosed left knee pain. Dr. Allen B. Richardson, a Board-certified orthopedic
surgeon, completed a report on December 6, 1979 and stated that appellant would be able to
return to work in the near future. Appellant resubmitted a portion from the Director’s motion to
remand in Docket No. 01-1194. He also submitted a portion of the Office’s decision denying
modification of the January 26, 1998 termination. Appellant alleged that Dr. Bradley and
Dr. Robert Watkins, a Board-certified orthopedic surgeon, were friends, thus creating a conflict
of interest. In a report dated June 2, 2003, Dr. Watters stated that appellant could not work as a
marine machinist based on the 1982 reports of Dr. Watkins. He noted that appellant’s knee
condition did not improve and that he could not work as a marine machinist at the date of his
first examination in August 24, 2000.
By decision dated October 18, 2007, the Office denied reconsideration on the grounds
that his request was not timely filed and did not establish clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act8 does not entitle a claimant
to review of an Office decision as a matter of right.9 This section vests the Office with
discretionary authority to determine whether it will review an award for or against
compensation.10 Through its regulations, the Office has imposed limitations on the exercise of
its discretionary authority. One such limitation is that the Office will not review a decision
denying or terminating a benefit unless the application for review is filed within one year of the
date of that decision.11 The Board has found that the imposition of this one-year time limitation
does not constitute an abuse of the discretionary authority granted the Office under 5 U.S.C.
§ 8128(a).12

7

As this decision was issued more than one year prior to the date of appellant’s appeal to the Board on
November 28, 2007, it is not before the Board. 20 C.F.R. § 501.3(d)(2).
8

5 U.S.C. § 8128(a).

9

Thankamma Mathews, 44 ECAB 765, 768 (1993).

10

Id. at 768; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990).

11

20 C.F.R. §§ 10.607; 10.608(b). The Board has concurred in the Office’s limitation of its discretionary
authority; see Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).
12

5 U.S.C. § 10.607(b); Thankamma Mathews, supra note 9 at 769; Jesus D. Sanchez, supra note 10 at 967.

3

The Office’s regulations require that an application for reconsideration must be submitted
in writing13 and define an application for reconsideration as the request for reconsideration
“along with supporting statements and evidence.”14 The regulations provide:
“[The Office] will consider an untimely application for reconsideration only if the
application demonstrates clear evidence of error on the part of [it] in its most
recent decision. The application must establish, on its face that such decision was
erroneous.”15
In those cases where requests for reconsideration are not timely filed, the Office must
nevertheless undertake a limited review of the case to determine whether there is clear evidence
of error pursuant to the untimely request in accordance with section 10.607(b) of its
regulations.16
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.17 The evidence must be positive, precise and explicit and must
be manifest on its face that the Office committed an error.18 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.19 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.20 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.21 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office’s decision.22 The Board must make an
independent determination of whether a claimant has submitted clear evidence of error on the
part of the Office such that the Office abused its discretion in denying merit review in the face of
such evidence.23
13

20 C.F.R. § 10.606.

14

20 C.F.R. § 10.605.

15

20 C.F.R. § 10.607(b).

16

Thankamma Mathews, supra note 9.

17

Id.

18

Leona N. Travis, 43 ECAB 227, 241 (1991).

19

Jesus D. Sanchez, supra note 10 at 968.

20

Leona N. Travis, supra note 18.

21

Nelson T. Thompson, 43 ECAB 919, 922 (1992).

22

Leon D. Faidley, Jr., 41 ECAB 104, 114 (1989).

23

Gregory Griffin, supra note 11.

4

ANALYSIS
Appellant requested reconsideration on July 24, 2007 contending that he was entitled to
wage-loss compensation due to his accepted employment injury. The Board issued the most
recent merit decision in this issue on December 20, 2002. The Board found that appellant had
not met his burden of proof to establish entitlement to continuing disability compensation on or
after February 1, 1998, the date the Office terminated his compensation benefits. As appellant’s
request for reconsideration was not filed within one year of the date of the most recent merit
decision, it was not timely filed.24
Appellant submitted an August 24, 2000 report from Dr. Dickson, a Board-certified
orthopedic surgeon, who diagnosed left knee pain. This report does not address appellant’s
condition at the time of the June 16, 2000 termination decision. Dr. Dickson’s report is not
based on a sufficiently detailed history of injury to establish continuing disability or to overcome
the special weight attributed to Dr. Bradley, the impartial medical examiner. As noted, to show
clear evidence of error, the evidence submitted must be of sufficient probative value to prima
facie shift the weight of medical opinion from the evidence in favor of the claimant and raise a
substantial question as to the correctness of the Office’s decision.25 Evidence, such as wellrationalized medical report that may have created a conflict in medical opinion is not clear
evidence of error.26 In this case, Dr. Dickson’s finding of left knee pain is not sufficient to create
a conflict with the opinion of the impartial medical examiner, Dr. Bradley, who found that
appellant had no disability for work as a result of his accepted employment injury. His report
does not raise a substantial question as to the correctness of the merit decision. This report does
not establish clear evidence of error and is not sufficient to require the Office to reopen
appellant’s claim for consideration of the merits.
The December 6, 1979 report of Dr. Richardson stated that appellant could return to work
in the near future. This report was issued almost 10 years prior to the termination of appellant’s
compensation in 1998. The Office does not support appellant’s claim that he was unable to return
to his date-of-injury position or establish clear evidence of error on the part of the Office.
Appellant submitted a portion of Dr. Watter’s June 2, 2003 report. Dr. Watters stated
that appellant could not work as a marine machinist in 1982. This report is not sufficient detailed
and well rationalized to rise to the level of a conflict with the report of Dr. Bradley, the impartial
medical adviser. Dr. Watters’ report does not raise a substantial question as to the correctness of
the merit decision. This report does not establish clear evidence of error and is not sufficient to
require the Office to reopen appellant’s claim for consideration of the merits.
Appellant also submitted portions of prior decisions of the Office and motions of the
Director. These documents do not establish clear evidence of error nor shift the weight of the
24

20 C.F.R. §§ 10.607; 10.608(b). The Board has concurred in the Office’s limitation of its discretionary
authority; see Gregory Griffin, supra note 11.
25

Leon D. Faidley, Jr., supra note 22.

26

See Dean D. Beets, 43 ECAB 1153, 1158 (1992).

5

evidence in favor of him. Appellant also alleged that two of the physicians of record were
friends. This contention does not raise a substantial question as to the correctness of the Office’s
decision. Appellant has not submitted any evidence substantiating that Dr. Bradley the impartial
medical specialist was not appropriately selected nor that he had any bias against appellant.
CONCLUSION
The Board finds that appellant’s request for reconsideration on July 24, 2007 was not
timely filed and did not establish clear evidence of error. The Office properly declined to reopen
appellant’s claim for reconsideration of the merits.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 18, 2007 is affirmed.
Issued: December 23, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.Y., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
EUROPE, 5th Signal Command, Germany,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 11-964
Issued: March 21, 2012

Case Submitted on the Record

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

JURISDICTION
On March 7, 2011 appellant timely appealed the December 29, 2010 nonmerit decision of
the Office of Workers’ Compensation Programs (OWCP), which denied her request for a
hearing. She also timely appealed OWCP’s September 9, 2010 merit decision that found an
overpayment of compensation. 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
overpayment decision.
ISSUES
The issues are: (1) whether appellant received an overpayment of $19,776.11 for the
period August 1, 2008 through July 31, 2010; (2) whether OWCP properly denied waiver of
recovery of the overpayment and ordered the withholding of $500.00 every 28 days from
appellant’s continuing compensation; and (3) whether the Branch of Hearings and Review
properly denied her September 28, 2010 request for a hearing.
1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
Appellant, a 69-year-old former auditor, has an accepted occupational disease claim for
right carpal tunnel syndrome and aggravation of bilateral hand/thumb osteoarthrosis, which arose
on or about June 17, 1997. OWCP has paid her wage-loss compensation for temporary total
disability dating back to October 1997. In August 2008, appellant was eligible to receive a
federal retirement (age-related) annuity. She received her first monthly retirement check from
the Social Security Administration (SSA) on or about September 24, 2008. This payment
covered the period beginning August 1, 2008. In addition to her federal retirement annuity,
appellant received wage-loss compensation from OWCP. In November 2008, she advised
OWCP that she was receiving SSA retirement benefits.
In April 2010, OWCP asked SSA to provide information regarding the dual benefits
appellant received. It forwarded a form entitled “FERS [Federal Employees’ Retirement
System] SSA [Dual Benefits Calculations].” Appellant’s name, date of birth and social security
number were noted on the form. OWCP also provided information regarding the date she was
first eligible to receive benefits under FECA. The form asked SSA to provide information
regarding the effective date of appellant’s social security benefits. It also asked for separate
calculations of the SSA rate with FERS and without FERS. OWCP asked SSA to calculate
appellant’s social security benefits based on her private sector employment contributions only
and then provide a separate calculation that included both private sector and FERS employment
contributions. The April 15, 2010 request went unanswered so it submitted a second request on
June 18, 2010.
An SSA representative responded on July 30, 2010.
Effective August 1, 2008,
appellant’s SSA rate with FERS was $1,160.20 a month. Excluding her FERS contributions, she
would have received only $377.40 in SSA benefits a month. Beginning December 1, 2008, the
amounts increased to $1,227.40 (with FERS) and $399.20 (without FERS).2 Effective August 1,
2010, OWCP reduced appellant’s 28-day compensation rate by $764.49 based on the recent
information provided by SSA.
On August 2, 2010 OWCP issued a preliminary overpayment decision finding that
appellant received an overpayment of $19,776.11 for the period August 1, 2008 through
July 31, 2010. It explained that part of her SSA retirement benefits were subject to offset.
OWCP further explained that it would be reducing her wage-loss compensation prospectively
because of the dual benefits. It noted that it had not reduced her compensation effective
August 1, 2008, therefore, an overpayment existed. Appellant was not considered at fault in
creating the overpayment. OWCP advised her of her right to respond to the preliminary
determination should she disagree. Appellant was afforded 30 days to respond in writing to the
preliminary determination but did not respond.
OWCP issued a final overpayment decision on September 9, 2010. Although appellant
was not at fault in creating the $19,776.11 overpayment, it denied waiver of recovery. OWCP
advised appellant that it would withhold $500.00 from her continuing compensation.
2

Appellant received a cost of living increase (COLA) effective December 1, 2008.

2

In a letter dated September 30, 2010, appellant expressed her surprise that OWCP had
already issued a final decision regarding the overpayment. She had reportedly contacted her
OWCP adviser, “Marilyn,” in late-August 2010 and received a 30-day extension to respond to
the preliminary determination. The September 30, 2010 letter also requested a waiver of
recovery and appellant challenged the amount of the overpayment. Appellant indicated that her
SSA entitlement began on August 2, 2008, but she did not receive her first check until
September 24, 2008. Based on her own calculations, she believed the overpayment was only
$18,325.26. Appellant also submitted an overpayment recovery questionnaire OWCP-20 and a
request for a prerecoupment hearing, both dated September 28, 2010. She did not provide any
supporting documentation, but reported a monthly household income of $10,593.00, monthly
expenses of $8,007.00 and assets totaling $445,200.00.3
By decision dated December 29, 2010, the Branch of Hearings and Review found that
appellant’s September 28, 2010 request for a prerecoupment was untimely. OWCP’s hearing
representative further found that she was not entitled to a hearing with respect to OWCP’s
September 9, 2010 final overpayment decision.4
LEGAL PRECEDENT -- ISSUE 1
A FECA beneficiary may not receive wage-loss compensation concurrently with a
federal retirement or survivor annuity.5 Wage-loss benefits are reduced by the amount of social
security benefits attributable to the employee’s federal service.6
ANALYSIS -- ISSUE 1
The record establishes that appellant received federal retirement benefits beginning
August 1, 2008. Appellant also received FECA wage-loss compensation for overlapping
periods. Part of her SSA retirement benefits were based on credits she earned as a federal
employee. Appellant is not entitled to wage-loss compensation and federal retirement benefits
concurrently. As such, her FECA benefits must be offset by the amount of any SSA benefits
attributable to her federal service.7 Based on information provided by SSA, OWCP calculated an
offset of $19,776.11 for the period August 1, 2008 through July 31, 2010, which it properly
declared an overpayment.
Appellant does not challenge the fact of overpayment, but the amount. She calculated the
overpayment based on when she received her SSA retirement benefits check. Appellant noted
that while she was eligible for SSA retirement benefits in early-August 2008, she did not receive
3

The reported assets included $135,000.00 in checking and savings accounts.

4

OWCP provided similar advice to appellant on November 23, 2010, but nonetheless forwarded her hearing
request so the Branch of Hearings and Review could issue a formal decision.
5

See 5 U.S.C. § 8116(a), (d); 20 C.F.R. § 10.421(a).

6

Id. at § 8116(d)(2).

7

20 C.F.R. § 10.421(d).

3

the first check until the latter part of September 2008. Based on when she actually received the
SSA benefit, she believed the overpayment was $18,325.26 rather than $19,776.11.
OWCP properly calculated the dual benefit/overpayment based on overlapping coverage
periods and not when those payments were actually received. There was a two-year period (730
days) where appellant received FERS based on SSA retirement benefits as well as FECA
benefits. The August 1, 2008 to July 31, 2010 period covered parts of 27 OWCP periodic
payments. SSA benefits were paid on a monthly basis, whereas FECA benefits were paid every
28 days. OWCP converted the monthly differential to a 28-day FERS offset for the
corresponding periods of August 1 to November 30, 2008 and December 1, 2008 to
July 31, 2010.8 For the 122-day period beginning August 1, 2008, the 28-day FERS offset was
$722.58 or $25.81 a day9 and for the 608-day period beginning December 1, 2008, OWCP
calculated a 28-day FERS offset of $764.49 or $28.89 a day.10 For the first 122-day period,
appellant was overpaid $3,148.82 (122 x $25.81) and for the latter period ending on July 31,
2010, she received an overpayment of $16,598.40 (608 x $27.30). The combined periods total
$19,747.22. However, OWCP found an overpayment of $19,776.11; a difference of $28.89.
The decision shall be modified to reflect an overpayment of $19,747.22. Accordingly, the Board
affirms OWCP’s finding with respect to the fact and amount of overpayment, as modified.
Additionally, the Board affirms its finding that appellant was not at fault in creating the
overpayment.
LEGAL PRECEDENT -- ISSUE 2
An individual who is without fault in creating or accepting an overpayment is nonetheless
subject to recovery of the overpayment unless adjustment or recovery would defeat the purpose
of FECA or would be against equity and good conscience.11 Recovery of an overpayment will
defeat the purpose of FECA if such recovery would cause hardship to a current or former
beneficiary because the beneficiary from whom OWCP seeks recovery needs substantially all of
her current income, including compensation benefits, to meet current ordinary and necessary
living expenses, and the beneficiary’s assets do not exceed a specified amount as determined by
OWCP.12 Additionally, recovery of an overpayment is considered to be against equity and good
conscience when any individual who received an overpayment would experience severe financial
hardship in attempting to repay the debt or when any individual, in reliance on such payment or

8

The 28-day FERS offset was derived by taking the reported monthly differential for the corresponding periods
and multiplying it by 12 (months) and then dividing that annual figure by 52 (weeks). The weekly amount was then
multiplied by 4 (weeks) to arrive at the 28-day FERS offset figure.
9

For the corresponding period, SSA reported a monthly differential of $782.80.

10

For this latter period which included a COLA, SSA reported a monthly differential of $828.20.

11

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

12

Id. at § 10.436(a), (b). For an individual with no eligible dependents the asset base is $4,800.00. The base
increases to $8,000.00 for an individual with a spouse or one dependent, plus $960.00 for each additional dependent.
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6a(1)(b) (June 2009).

4

on notice that such payments would be made, relinquished a valuable right or changed her
position for the worse.13
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by OWCP.14 This information is necessary for
determining whether a waiver of recovery of the overpayment is warranted.15 The information is
also used to determine an appropriate repayment schedule, if necessary.16 Failure to submit the
requested information within 30 days of the request shall result in denial of waiver.17
When an overpayment has been made to an individual who is entitled to further payments
and 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
ANALYSIS -- ISSUE 2
While OWCP found appellant was not at fault in creating the overpayment, this alone
does not entitle her to waiver of recovery of the overpayment. The August 2, 2010 preliminary
determination advised her of the various options available to her, including the submission of an
overpayment recovery questionnaire Form OWCP-20. Appellant was expected to respond in
writing within 30 days of the date of the preliminary determination. She claimed she contacted
OWCP by telephone in late-August 2010 and reportedly received an extension of time to respond
to the August 2, 2010 preliminary overpayment determination. The Board notes that there are no
contemporaneous records Form CA-110 notes documenting a late-August 2010 telephone
conversation between appellant and OWCP.
Prior to issuing its September 9, 2010 final overpayment decision, OWCP had not
received any evidence or argument from appellant that might otherwise justify a waiver of
recovery of the overpayment. Particularly, it did not have access to any current financial
information other than her monthly SSA benefits and her wage-loss compensation. Appellant is
responsible for providing information about income, expenses and assets.19 This information is
necessary for determining whether a waiver of recovery is warranted.20 It is also used to
determine an appropriate repayment schedule.21 The regulations specifically provide that failure
13

Id. at § 10.437(a), (b).

14

Id. at § 10.438(a).

15

Id.

16

Id.

17

Id. at § 10.438(b).

18

Id. at § 10.441(a).

19

Supra note 14.

20

Id.

21

Id.

5

to submit the requested financial information within 30 days of the request “shall result in denial
of waiver....”22 Absent the requisite financial information, the Board finds that OWCP properly
denied waiver of recovery of the overpayment. The Board further finds that under the
circumstances, OWCP reasonably imposed a repayment schedule of $500.00 every 28 days.23
LEGAL PRECEDENT -- ISSUE 3
In response to a preliminary notice of overpayment, an individual may present evidence
to OWCP in writing or at a prerecoupment hearing. The evidence must be presented or the
hearing requested within 30 days of the date of the written notice of overpayment. Failure to
request the hearing within this 30-day time period shall constitute a waiver of that right.24
The only review of a final decision concerning an overpayment is to the Board. The
provisions of 5 U.S.C. §§ 8124(b) and 8128(a) regarding hearings and reconsideration do not
apply to a final overpayment decision.25
ANALYSIS -- ISSUE 3
Appellant reportedly contacted OWCP by telephone in late-August 2010 and received a
30-day extension to respond to the preliminary overpayment determination. As previously
noted, there is no contemporaneous documentation of this conversation. Moreover, the
“[overpayment action request]” form that accompanied the August 2, 2010 preliminary
determination was specific as to the 30-day time limitation and the method of requesting a
prerecoupment hearing, including the particular address where the signed, written request was to
be mailed.
Appellant’s written request for a prerecoupment hearing was dated
September 28, 2010.
As appellant’s written hearing request was dated more that 30 days after the August 2,
2010 preliminary determination, it was untimely, and she effectively waived her right to a
prerecoupment hearing.26 Furthermore, the Branch of Hearings and Review properly advised
appellant that because OWCP had already issued a final overpayment decision on September 9,
2010, that decision was not subject to the hearing provision under 5 U.S.C. § 8124(b).27

22

Supra note 17.

23

In addition to money previously withheld from her compensation, appellant remitted a lump sum of $17,325.26
on October 30, 2010. The debt has since been repaid in full.
24

20 C.F.R. § 10.432.

25

Supra note 16.

26

Supra note 24.

27

20 C.F.R. § 10.440(b).

6

CONCLUSION
Appellant received an overpayment of $19,747.22 for the period August 1, 2008 through
July 31, 2010. Although she was without fault in creating the overpayment, she is not entitled to
waiver of recovery. The Board further finds that OWCP reasonably imposed a repayment
schedule of $500.00 every 28 days to be withheld from appellant’s continuing compensation
payments. Lastly, as appellant did not timely request a prerecoupment hearing, OWCP properly
denied her request for hearing.
ORDER
IT IS HEREBY ORDERED THAT the December 29 and September 9, 2010 decisions
of the Office of Workers’ Compensation Programs are affirmed, as modified.
Issued: March 21, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7