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

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

Docket No. 17-0260
Issued: December 28, 2017

Case Submitted on the Record

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

JURISDICTION
On November 15, 2016 appellant, through her representative, filed a timely appeal from a
June 16, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received a $18,871.08 overpayment of
compensation for the period January 1, 2012 through March 7, 2015; (2) whether appellant was
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.

at fault in the creation of the $18,871.08 overpayment and, therefore, ineligible for waiver of
recovery; and (3) whether OWCP properly found that the overpayment should be recovered by
deducting $150.00 every 28 days from appellant’s continuing compensation payments.
FACTUAL HISTORY
On June 20, 1989 appellant, then a 37-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that she developed a bilateral arm and elbow injury as a result of her
repetitive employment duties. OWCP accepted the claim for bilateral carpal tunnel syndrome,
bilateral cubital tunnel syndrome, bilateral epicondylitis, and bilateral de Quervains
tenosynovitis. Appellant underwent surgery in August and November 1990. She was off work
intermittently following her injury and received wage-loss compensation. On September 5, 1995
appellant returned to work in a limited-duty position. On November 10, 2008 she stopped work
due to withdrawal of her limited-duty assignment. Appellant received wage-loss compensation
on the supplemental rolls from November 10, 2008 through June 5, 2010. On June 6, 2010 she
began receiving wage-loss and medical benefit compensation on the periodic rolls.
By letter dated June 9, 2010, OWCP advised appellant that she had been placed on
periodic rolls beginning June 6, 2010 and outlined her entitlement to compensation benefits and
her responsibility to return to work in connection with the accepted employment injury.
Appellant’s weekly pay rate was calculated at the 75 percent augmented rate, amounting to
$985.62. OWCP explained to her that she should be aware that “payment of compensation will
be terminated without such notice whenever this office is notified that you have earnings equal to
or higher than the wages being paid for the job you held when injured.” Its letter further
provided that in order to avoid an overpayment of compensation, “NOTIFY THIS OFFICE
IMMEDIATELY WHEN YOU RETURN TO WORK. Each payment made through [OWCP’s]
automated system will include the period for which payment is made. If you have worked for
any portion of this period, you must return the check to this office. Otherwise, an overpayment
of compensation may result.”
On June 15, 2010 appellant elected to receive her compensation benefits by direct
deposit.
By letter dated November 5, 2010, OWCP requested information from appellant
regarding her wages and compensation for the prior 15-month period and provided a Form CA1032 for completion. On November 12, 2010 appellant completed the form stating that she did
not work for any employing establishment during the past 15 months.
By letter dated March 25, 2011, appellant noted that she was currently receiving 75
percent of her wages and asked whether she could earn more wages from part-time employment.
She stated that it was her understanding that she could earn the remaining 25 percent of her lost
wages and not jeopardize her workers’ compensation as long as the work performed was not in
violation of her current physical restrictions.
By letter dated April 6, 2011, OWCP responded to appellant’s inquiry writing,
“[Appellant] additionally asked if [she] could perform part-time employment while collecting
workers’ compensation benefits. If you are able to work you are encouraged to do so. If you

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return to work, whether it be volunteer or paid, you will need to report your earnings on the
annual CA-1032 forms so that we can report your earnings to the Social Security Administration.
Working in any capacity could affect your workers’ compensation payments.”
On December 9, 2011 appellant notified OWCP that she was training with West Noble
School Corporation to be a substitute school bus driver. She reported that, on the days that she
worked, she would be driving approximately three hours that day. Appellant further reported
that she would begin earning income in 2012. She stated that it was her understanding that since
she was receiving 75 percent disability compensation, she was permitted to earn up to the
remaining 25 percent of lost compensation. Appellant requested that OWCP send her
verification of the gross pay of a city letter carrier so that she could calculate what the allowable
25 percent income.
In a January 6, 2012 CA-110 telephone memorandum, the claims examiner reported that
she attempted to call appellant and left a message to discuss her December 9, 2011 letter, as
more information was needed since a return to work would affect her wage-loss compensation
benefits.
By letter dated November 5, 2012, OWCP requested information from appellant
regarding her wages and compensation for the prior 15-month period and provided a Form CA1032 for completion. On November 12, 2012 appellant completed the form and indicated that
she had been working as a substitute bus driver in the private sector beginning in January 2012.3
By letter dated November 12, 2012, appellant notified OWCP that she had been working
as a substitute bus driver part time since January 2012. She submitted pay stubs of her earnings
from October 22 to November 4, 2012.
In a December 13, 2012 CA-110 telephone memorandum, OWCP’s claims examiner
notified appellant that, while she was allowed to earn an income, OWCP would have to offset
that amount from her compensation benefits.
In a December 30, 2014 CA-110 telephone memorandum, OWCP’s claims examiner
notified appellant that her compensation should be based on a loss of wage-earning capacity
(LWEC), based on her wages earned in her new employment.
On March 8, 2015 OWCP began offsetting appellant’s compensation based on the wages
she earned in her new employment. By letter dated March 20, 2015, it advised her that she was
taken off the periodic rolls effective March 7, 2015 and would be issued wage-loss compensation
reduced by her actual earnings.
By letter dated July 2, 2015, OWCP made a preliminary determination that appellant
received an overpayment of compensation in the amount of $18,871.08 from January 1, 2012
through March 7, 2015, because she was in receipt of total disability compensation benefits after
she returned to part-time work in the private sector and she was at fault because she accepted
3

The record reflects that appellant submitted subsequent EN1032 forms dated November 27, 2013 and
December 1, 2014 disclosing her part-time employment as a substitute bus driver with accompanying pay stubs.

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payments she knew or should have reasonably known were incorrect. It informed her of her
review rights and instructed her to complete an enclosed overpayment recovery questionnaire
(Form OWCP-20) and submit supporting documentation within 30 days.
An accompanying OWCP memorandum determined that appellant was paid total
disability compensation benefits in the amount of $135,021.03 for the period January 2, 2012
through March 7, 2015. Utilizing the Shadrick Formula, it determined that she was only due
compensation based on her ability to earn an average weekly salary of $163.63. Thus, the total
compensation due to appellant for the time period of January 2, 2012 to March 7, 2015 amounted
to $116,149.95. Taking the $135,021.03 paid and subtracting the $116,149.95 of compensation
owed for that period resulted in an overpayment of $18,871.08. A Shadrick formula
documentation memorandum and pay rolls computer printouts were provided showing the
overpayment calculations.
On July 21, 2015 appellant, through her representative, requested a prerecoupment
hearing before an OWCP hearing representative. She contested the amount of overpayment,
finding of fault, and requested waiver of recovery of the overpayment as it would cause her
financial hardship. Appellant’s representative explained that appellant was without fault in the
creation of the overpayment because she had notified OWCP in December 2011 that she would
be working as a substitute bus driver. Appellant also properly disclosed that information on the
EN1032 forms she submitted to OWCP. He referenced OWCP’s June 9, 2010 letter, which
outlined her compensation on the periodic rolls and asserted: “[Appellant] should be aware that
payment of compensation will be terminated without such notice whenever this office is notified
that you have earnings equal to or higher than the wages being paid for the job [she] held when
injured.” He explained that appellant believed that, because she was only receiving 75 percent of
her compensation benefits, she could work in the private sector earning the remaining 25 percent
and an overpayment of compensation would not occur unless she earned more than 100 percent
of her income. Appellant’s representative argued that she had requested clarification from
OWCP multiple times regarding her wage-loss compensation when returning to part-time work,
yet OWCP failed to provide her that information. He further argued that the amount of
overpayment was incorrect as the payments received for the period January 1, 2012 through
March 7, 2015 were less than the $135,021.04 as alleged by OWCP. Appellant’s representative
requested that the debt be waived as repayment would cause appellant great financial hardship.
In support of her appeal, appellant submitted documents indicating when she had
contacted OWCP regarding her employment as a substitute bus driver, as well as requests for
clarification from OWCP, copies of previously submitted EN1032 forms, and supplemental rolls
payment printouts for compensation received for the period of the overpayment claimed.
In a completed Form OWCP-20 dated July 16, 2015, appellant reported a monthly
income of $4,201.65 with $1,320.00 in her checking account. She noted her husband as her
dependent, listed her monthly expenses, and argued that repayment of the debt would cause her
financial hardship. Appellant reported that she properly notified OWCP about her job as a
substitute bus driver. She argued that she sought clarification from OWCP numerous times
regarding whether her employment as a substitute bus driver would affect her wage-loss
compensation, and she reiterated that she believed that she could earn wages as long as she was
not making more than 100 percent of her income as a letter carrier.

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A hearing was held on March 17, 2016 where appellant and her representative contested
the amount of overpayment and finding of fault, and requested that recovery of the overpayment
be waived due to financial hardship. She again reiterated that she never made any false
statements to OWCP and that the overpayment occurred through no fault of her own. Appellant
again explained her belief that she could earn wages equaling 25 percent of her lost income,
without the creation of an overpayment. Appellant’s representative argued that appellant only
had an 11th grade education and could not be expected to understand that she was being overpaid.
Appellant reported having $101,652.00 in debt and that repayment should be waived as it would
cause her a great financial hardship to repay the debt.
On April 12, 2016 appellant, through her representative, submitted a post hearing brief in
support of her claim. Appellant provided bills and listed her monthly expenses amounting to
$4,497.00, which included $758.00 for food, $920.00 mortgage, $541.00 revolving credit,
$253.00 telephone, $185.00 television and internet Verizon Wireless, $210.00 gas and electric,
$317.00 health insurance, $414.00 out of pocket medical costs, $105.00 Medicare Part B,
$243.00 life insurance, $123.00 additional life insurance, $32.00 insurance, $78.00 automobile
insurance, $243.00 fuel and maintenance, $25.00 charitable donation to church, and $50.00
miscellaneous expenses.
By decision dated June 16, 2016, OWCP finalized the preliminary overpayment
determination, finding that appellant was overpaid in the amount of $18,871.08 from January 1,
2012 through March 7, 2015, because she was in receipt of total disability compensation benefits
after she returned to part-time work in the private sector. It found that she was at fault in the
creation of the overpayment because she accepted payments that she knew or should have known
to be incorrect and thus, she was not entitled to waiver of recovery of the overpayment. OWCP
determined that the overpayment would be recovered by deduction of $150.00 from appellant’s
continuing compensation payments every 28 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.4
Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, he
or she may not receive salary, pay, or remuneration of any type from the United States, except in
limited circumstances.5 OWCP’s regulations state in pertinent part: Compensation for wageloss due to disability is available only for any periods during which an employee’s work-related
medical condition prevents him or her from earning the wages earned before the work-related
injury.6 A claimant is not entitled to receive temporary total disability and actual earnings for the

4

5 U.S.C. § 8102.

5

Id. at § 8116(a).

6

20 C.F.R. § 10.500.

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same period. OWCP’s procedures provide that an overpayment in compensation is created when
a claimant returns to work, but continues to receive wage-loss compensation.7
Section 8129(a) of FECA provides that when an overpayment has been made to an
individual because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which the individual is
entitled.8
If the claimant is entitled to compensation for partial wage loss after return to work, the
claims examiner should compute entitlement using the Shadrick formula and authorize
compensation on a 28-day payment cycle. The claims examiner should make every effort to
avoid interruption of income to the claimant.9 Earnings of a sporadic or intermittent nature
which do not fairly and reasonably represent the claimant’s LWEC should be deducted from
continuing compensation payments using the Shadrick formula (past earnings must be declared
an overpayment). Sporadic or intermittent earnings should not be used as the basis for an LWEC
determination, but they should be used to help establish the kind of work the claimant can
perform.10
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $18,871.08 from January 1, 2012 through March 7, 2015, because she continued to receive
total disability compensation after her return to part-time work. OWCP accepted appellant’s
claim and paid wage-loss compensation, placing her on periodic rolls beginning June 6, 2010.
The record indicates that, beginning January 1, 2012, appellant returned to part-time work in the
private sector as a substitute school bus driver. However, OWCP subsequently paid her wageloss compensation for total disability from January 1, 2012 through March 7, 2015, resulting in
an overpayment of compensation.11 Accordingly, the Board finds that appellant received an
overpayment of compensation.12
During the period January 1, 2012 to March 8, 2015, appellant received wages from parttime employment in the amount of $27,185.27. As previously noted, a claimant is not entitled to
receive temporary total disability benefits and actual earnings for the same time period.13
7

B.H., Docket No. 09-0292 (issued September 1, 2009); Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Initial Overpayment Actions, Chapter 6.200.2(a) (May 2004).
8

5 U.S.C. § 8129(a).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on Actual
Earnings, Chapter 2.815.3(b) (June 2013). See Albert C. Shadrick, 5 ECAB 376 (1953).
10

Id. at Chapter 2.815.4(b).

11

See J.W., Docket No. 15-1163 (issued January 13, 2016).

12

R.W., Docket No. 13-1108 (issued September 10, 2013).

13

L.S., 59 ECAB 350, 352-53 (2008).

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Utilizing the Shadrick formula,14 OWCP took the $27,185.27 total earnings and divided it by the
1163 calendar days for this time period to calculate her daily compensation rate. It multiplied
the total by seven, resulting in $163.63 earned weekly in appellant’s part-time employment as a
substitute bus driver. OWCP reported that, had proper adjustments been made to her disability
compensation to reflect her part-time employment, she would have received $116,149.95 for this
time period. However, appellant received compensation for this period in the amount of
$135,021.03. The difference between these two amounts, $18,871.08, is the amount of the
overpayment, as calculated by OWCP.15 Accordingly, the Board finds that OWCP properly
determined that appellant received an overpayment of compensation in the amount of $18,871.08
from January 1, 2012 through March 7, 2015 as she had earnings from part-time employment
and was not entitled to compensation for total disability.16
On appeal appellant’s representative argues that the calculations showing the amount of
overpayment were not attached with the preliminary overpayment determination and he
references a July 22, 2015 letter from OWCP apologizing for not sending the calculations with
the decision. The Board notes that the record reflects that the Shadrick documentation
memorandum and supplemental pay rolls printouts were sent with the July 2, 2015 preliminary
overpayment determination. By letter dated July 19, 2015, appellant informed OWCP that the
pages reflecting payment were not included with the July 2, 2015 preliminary determination. By
letter dated July 22, 2015, OWCP responded to her apologizing for the oversight and resubmitted
the worksheets calculating her overpayment. The Board notes that appellant’s representative has
not established that OWCP failed to provide appellant with the requisite documentation such that
she was unable to dispute the fact and the amount of overpayment.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA17 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.18 Thus, OWCP may not waive the overpayment of compensation
unless appellant was without fault.19 Adjustment or recovery must, therefore, be made when an
incorrect payment has been made to an individual who is with fault.20

14

See Shadrick, supra note 9.

15

C.F., Docket No. 16-1718 (issued August 21, 2017).

16

V.G., Docket No. 07-0916 (issued November 15, 2007).

17

5 U.S.C. § 8129(b).

18

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

19

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

20

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

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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.”21
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
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.22
ANALYSIS -- ISSUE 2
OWCP determined that appellant was at fault in the creation of the overpayment because
she accepted payments that she knew or should have known to be incorrect. The Board finds,
however, that she was without fault with regard to OWCP’s first direct deposit following her
return to part-time work, but was at fault in creating the overpayment resulting from the
subsequent deposits.23
In cases where a claimant receives compensation through direct deposit, the Board has
held that OWCP must establish that at the time a claimant received the direct deposit in question
that he or she knew or should have known that the payment was incorrect.24 The Board has held
that an employee who receives payments from OWCP in the form of a direct deposit may not be
at fault for the first incorrect deposit into his or her account since the acceptance of the
overpayment, at the time of receipt of the direct deposit, lacks the requisite knowledge.25
Because fault is defined by what the claimant knew or should have known at the time of
acceptance, one of the consequences of electronic fund transfers is that the claimant lacks the
requisite knowledge at the time of the first incorrect payment.26 Whether or not OWCP
determines that an individual is at fault with respect to the creation of an overpayment depends

21

20 C.F.R. § 10.433(a).

22

Id. at § 10.433(b).

23

M.L., Docket No. 15-1683 (issued June 20, 2016).

24

See Claude T. Green, 42 ECAB 174, 278 (1990).

25

See Tammy Craven, 57 ECAB 589 (2006); see also George A. Hirsch, 47 ECAB 520 (1996).

26

Id.

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on the circumstances surrounding the overpayment.27 It is not appropriate, however, to make a
finding that a claimant has accepted an overpayment via direct deposit until such time as a
reasonable person would have been aware that this overpayment had occurred. This awareness
could be established either through documentation such as a bank statement or notification from
OWCP or where a reasonable period of time has passed during which a claimant could have
reviewed independent confirmation of the incorrect payment.28
The record establishes that for the overpayment period, January 1, 2012 to March 7,
2015, appellant received compensation by direct deposit payments every 28 days. She received a
partial overpayment for the 28-day pay period of December 18, 2011 to January 14, 2012, having
returned to part-time work beginning January 1, 2012. Following this initial overpayment,
appellant was improperly paid wage-loss compensation for total disability without adjustment for
actual wages earned from January 15, 2012 through March 7, 2015. The funds were directly
deposited into her account and the remaining disbursements amounted to an overpayment.
The Board finds that appellant was without fault for the initial direct deposit of the paid
amount into her account for the January 1 to 14, 2012 overpayment period.29 Although she
accepted the overpayment at the time it was deposited into her account, OWCP has not shown
that she knew or should have known at the time of the deposit that the payment was incorrect.30
Appellant had no reason to suspect at the time of the January 14, 2012 deposit that OWCP had
issued an incorrect payment since this was the first incorrect payment made. Additionally, she
was entitled to some wage-loss compensation for total disability for the period December 18,
2011 to January 14, 2012 and thus the circumstances surrounding the overpayment were more
complex than usual.31 As such, the Board finds that appellant was not at fault in either creating
or accepting the overpayment for the period of January 1 to 14, 2012.32 A finding of no fault
does not mean, however, that appellant may keep the initial payment amount; only that OWCP
must consider eligibility for waiver for this period, and the case must be remanded for OWCP to
determine whether she is entitled to waiver of recovery for this portion of the overpayment.
The Board further finds that appellant was at fault in the creation of the overpayment
resulting from the remaining direct deposits for the period January 15, 2012 to March 7, 2015.33
In a June 6, 2010 letter, appellant was notified that, to avoid an overpayment of compensation,
she must immediately notify OWCP of her return to work. She was required to return any check
to OWCP which included a period during which she worked. Although OWCP may have been
negligent in making incorrect payments, this does not excuse a claimant from accepting
27

Id.; see also K.D., Docket No. 13-0451 (issued April 12, 2013).

28

See K.H., Docket No. 06-0191 (issued October 30, 2006).

29

J.S., Docket No. 12-1707 (issued June 10, 2013).

30

See also C.K., Docket No. 12-0746 (issued May 1, 2012).

31

See W.B., Docket No. 09-1440 (issued April 12, 2010).

32

V.A., Docket No. 12-0637 (issued August 27, 2012).

33

D.W., Docket No. 14-0229 (issued April 17, 2014).

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payments she knew or should have known to be incorrect.34 In cases involving a series of
incorrect payments, where the requisite knowledge is established by documentation from OWCP
or simply with the passage of time and opportunity for discovery, the claimant will be at fault for
accepting the payments subsequently deposited. By the time of the second payment dated
February 11, 2012, appellant should have known that she was not entitled to the same amount of
wage-loss compensation as she had received prior to her return to part-time work on
January 1, 2012.35 After her receipt of the first direct deposit following her return to part-time
work, she was on notice that OWCP was making payments to her in error and knew or should
have known that she was not entitled to the benefit of the subsequent direct deposit.
Despite OWCP’s explicit instructions regarding receipt of wage-loss compensation while
working, appellant claimed she believed that she was entitled to the payments received from
OWCP. She argued that, by letter dated March 25, 2011, she requested more information from
OWCP as she thought she could earn the remaining 25 percent of her unpaid compensation. The
Board notes that, by letter dated April 6, 2011, the claims examiner informed appellant that
working in any capacity could affect her workers’ compensation payments.
Appellant also referenced OWCP’s June 9, 2010 letter, which provided notice that her
compensation would be terminated if she had earnings equal to or higher than the wages being
paid for the job she held when injured. As the letter noted that her wage-loss compensation
amounted to 75 percent of her earnings, she thought that she could earn the remaining 25 percent
without creating an overpayment.36 The Board notes that OWCP’s June 6, 2010 letter also
explicitly stated that appellant was required to return any check to OWCP which included a
period during which she worked because an overpayment could occur. As noted by appellant,
OWCP informed her that an overpayment could occur. She was specifically instructed to return
payment during any period worked so that OWCP could determine her LWEC.
Appellant further argued that she was not at fault because she notified the claims
examiner in December 2011 that she was going to start part-time work and again notified OWCP
about her return to part-time work in November 2011 when OWCP requested the information on
the EN1032 form. She argued that she was confused by the process and attempted to contact the
claims examiner regarding her part-time employment, but failed to receive an explanation. Each
recipient of compensation benefits is responsible for taking all reasonable measures to ensure
that payment appellant receives from OWCP is proper.37 The fact that OWCP may have been
negligent in issuing the payments does not mitigate this finding.38 In light of OWCP’s clear
mandate to provide notification of a return to work and to return any payment received, which
included a period during which appellant worked, a reasonable person would have known that an
34

See C.G., Docket No. 15-0701 (issued December 9, 2015).

35

Id.

36

Under section 8110 of FECA, an employee is entitled to compensation at the augmented rate of 75 percent of
her weekly pay if she has one or more dependents. 5 U.S.C. § 8110.
37

K.M., Docket No. 16-0802 (issued November 23, 2016).

38

C.F., Docket No. 16-1718 (issued August 21, 2017).

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overpayment had occurred.39 As appellant was at fault in creating the overpayment for the
period January 15, 2012 to March 7, 2015, she is not eligible for waiver of recovery with respect
to the portion of the overpayment for this period.40
Appellant has also not established that she was without fault in the overpayment because
she only had an 11th grade education and could not understand that she was receiving an
overpayment. There is no support to establish that she was of diminished mental capacity due to
the extent of her education.41
The Board finds that this case is not in posture for decision regarding the issue of waiver
of the recovery of the overpayment for the period January 1 to 14, 2012. The Board will remand
the case for OWCP to determine whether appellant is entitled to waiver of recovery of the
overpayment created for this period.42 The Board finds that OWCP properly determined that she
was at fault for the remaining period of overpayment, January 15, 2012 to March 7, 2015. As
appellant was at fault under the third fault standard outlined above, recovery of the remaining
overpayment of compensation may not be waived.43
Finally, as appellant’s eligibility for waiver for a portion of the overpayment cannot yet
be determined, the issue of recovery will not be considered in the present appeal. On remand,
she will have an opportunity to submit and have OWCP consider relevant financial evidence on
this issue. Following this and all other development deemed necessary, OWCP shall issue a de
novo decision in the case.44
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $18,871.08 from January 1, 2012 through March 7, 2015. The
Board further finds that she was without fault for the creation of the overpayment for the period
January 1 to 14, 2012, and that she was at fault for the creation of the overpayment for the period
January 15, 2012 to March 7, 2015.

39

Supra note 16.

40

V.D., Docket No. 16-0578 (issued November 3, 2016).

41

J.C., Docket No. 16-1889 (issued May 17, 2017).

42

Supra note 33.

43

No waiver of an overpayment is possible if the claimant is at fault in creating the overpayment. L.J., 59 ECAB
264 (2007).
44

P.L., Docket No. 16-0127 (issued May 3, 2016).

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ORDER
IT IS HEREBY ORDERED THAT the June 16, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further action consistent with this decision of the Board.
Issued: December 28, 2017
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.S., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISIONS, Milan, MI, Employer
__________________________________________

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

Docket No. 18-0227
Issued: May 24, 2018

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 November 13, 2017 appellant filed a timely appeal from a November 8, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established more than two percent permanent
impairment of the left lower extremity, for which he previously received a schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On June 19, 2015 appellant, then a 39-year-old education supervisor, injured his left knee
while responding to a medical emergency at the correctional facility’s recreation yard.3 OWCP
accepted his traumatic injury claim (Form CA-1) for left knee lateral meniscus tear. On
November 23, 2015 appellant underwent OWCP-approved left knee arthroscopic surgery.4 He
received wage-loss compensation for temporary total disability. On January 19, 2016 appellant
returned to work in a full-time, limited-duty capacity. He resumed his regular duties on
February 26, 2016.5 Appellant also filed a claim for a schedule award (Form CA-7).
In a May 13, 2016 report, Dr. Telfer advised that appellant reached maximal medical
improvement (MMI). He also advised appellant that it was quite possible that his left knee arthritis,
as evidenced on x-ray (June 20, 2015) and during surgery, could progress to the point where
appellant might require knee replacement surgery. In the short term, Dr. Telfer explained that
appellant was able to manage his day-to-day symptoms with activity modification, over-thecounter medications, and similar conservative measures. In an August 17, 2016 follow-up report,
he reiterated that appellant reached MMI. Dr. Telfer indicated that appellant was back at work
and reported no significant difficulties. He explained that the combination of the loss of meniscal
tissue through injury and surgery, and appellant’s preexisting arthritis, would likely increase the
chance of future symptoms of arthritis. Currently, appellant’s symptoms were fairly minimal and
tolerable. Dr. Telfer noted that there was no way to project a timetable for future difficulties with
appellant’s left knee. Because he was either unable or unwilling to prepare an impairment rating,
OWCP referred appellant for a second opinion evaluation.
By decision dated December 21, 2016, OWCP granted a schedule award for two percent
permanent impairment of the left lower extremity pursuant to the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A.,
Guides).6 OWCP based the award on a November 8, 2016 impairment rating provided by
Dr. Richard H. Deerhake, a Board-certified orthopedic surgeon and OWCP referral physician.
Dr. Deerhake rated appellant based on his November 23, 2015 partial lateral meniscectomy.7 He
2

Docket No. 17-0489 (issued May 11, 2017).

3

Appellant was running across the baseball field when he felt his knee pop and give way.

4

Dr. James L. Telfer, a Board-certified orthopedic surgeon, performed a diagnostic arthroscopy with minimal
chondral debridement and partial lateral meniscectomy.
In a February 25, 2016 report, appellant’s surgeon released him to return to his “usual work duties without
restriction.”
5

6

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

7
Table 16-3, Knee Regional Grid (LEI), A.M.A., Guides 509 (6th ed. 2009). OWCP’s district medical adviser
(DMA) concurred with Dr. Deerhake’s two percent left lower extremity permanent impairment rating.

2

did not evaluate appellant for left knee arthritis noting there were “no clinical studies in terms of
standing x-rays to evaluate joint space.” Dr. Deerhake also indicated that “arthritis … [was] not
an allowed condition … in regards to [appellant’s] knee….”
Appellant subsequently appealed to the Board. By May 11, 2017 decision, the Board set
aside OWCP’s December 21, 2016 decision, and remanded the schedule award claim for further
medical development.8 The Board found that additional development was necessary with respect
to appellant’s preexisting left knee arthritis. The Board explained that, when determining
entitlement to a schedule award, preexisting impairment to the scheduled member should be
included.9
OWCP subsequently received a February 10, 2017 left knee magnetic resonance imaging
(MRI) scan interpreted by Dr. Eric C. Ferguson a diagnostic radiologist that revealed a tear of the
lateral meniscal body which was likely a degenerative-type tear. He indicated that the left knee
MRI scan also showed blunting of the posterior horn of the lateral meniscus that may be from prior
debridement, degenerative blunting, or minor tearing. There was also evidence of moderate bony
and chondral degenerative changes in the lateral compartment, mild medial compartment
degenerative changes, and moderate degenerative changes of the patellofemoral joint.
In a May 26, 2017 addendum report, Dr. Deerhake reviewed appellant’s June 20, 2015 left
knee x-ray and indicated that he did not “find significant narrowing of the joint on his standing
knee film which would allow for additional award for the arthritic changes in [appellant’s] knee.”
He explained that while appellant had some mild degenerative knee symptoms, it was not the cause
of his current discomfort and pain. Dr. Deerhake attributed appellant’s problem to having had his
lateral meniscus excised.
In a June 15, 2017 report, the DMA reviewed the record, including appellant’s
February 10, 2017 left knee MRI scan, and concurred with Dr. Deerhake’s May 26, 2017
impairment rating. The DMA explained that although appellant had preexisting left knee arthritis,
Dr. Deerhake’s review of appellant’s x-rays did not demonstrate joint space narrowing that would
warrant impairment for arthritis under the A.M.A., Guides (6th ed. 2009).
By decision dated June 26, 2017, OWCP denied appellant’s request for an increased
schedule award. It found that the evidence established that he had no more than the two percent
left lower extremity permanent impairment previously awarded.
On August 15, 2017 appellant requested reconsideration and submitted additional
evidence.
On July 27, 2017 Dr. Chad A. Krueger, a Board-certified internist, evaluated appellant for
musculoskeletal pain and back pain. He noted that appellant experienced bilateral knee pain with

8

See supra note 2.

9

Id.

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locking, loss of strength, and difficulty climbing stairs, bending, and squatting. Dr. Krueger
diagnosed chronic left knee pain.
On August 3, 2017 Dr. Krueger related that appellant experienced “constant and severe
arthritic pain involving both knees and the lower back.” He discussed his complaints of reduced
left knee motion, loss of strength, locking, pain, and limitations with activity. Dr. Krueger opined
that appellant reached MMI in November 2016.
By decision dated November 8, 2017, OWCP denied modification of its June 26, 2017
decision. It found that appellant had not submitted evidence establishing more than two percent
permanent impairment of the left lower extremity.
LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions, and organs of the body.10 FECA, however,
does not specify the manner by which the percentage loss of a member, function, or organ shall be
determined. To ensure consistent results and equal justice under the law, good administrative
practice requires the use of uniform standards applicable to all claimants. The implementing
regulations have adopted the A.M.A., Guides as the appropriate standard for evaluating schedule
losses.11 Effective May 1, 2009, schedule awards are determined in accordance with the sixth
edition of the A.M.A., Guides (2009).12
When determining entitlement to a schedule award, preexisting impairment to the
scheduled member should be included.13 Impairment ratings for schedule awards include those
conditions accepted by OWCP as job related, and any preexisting permanent impairment of the
same member or function.14 If the work-related injury has affected any residual usefulness in
whole or in part, a schedule award may be appropriate.15 There are no provisions for
apportionment under FECA,16 but when the prior impairment is due to a previous work-related

10

For a total or 100 percent loss of use of a leg, an employee shall receive 288 weeks’ compensation. 5 U.S.C.
§ 8107(c)(2).
11

20 C.F.R. § 10.404.

12

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (March 2017).
13

Carol A. Smart, 57 ECAB 340, 343 (2006); Michael C. Milner, 53 ECAB 446, 450 (2002).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5d.
15

Id.

16

Id.

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injury and a schedule award has been granted for such prior impairment, the percentage already
paid is subtracted from the total percentage of impairment.17
ANALYSIS
OWCP accepted that appellant sustained a left knee lateral meniscus tear. On
November 23, 2015 appellant underwent a left partial lateral meniscectomy. He later filed a
schedule award claim. Because his attending physician was unable to provide an impairment
rating, OWCP referred appellant to Dr. Deerhake, who initially found two percent left lower
extremity permanent impairment based on appellant’s left partial lateral meniscectomy. On
remand Dr. Deerhake considered whether there was any additional lower extremity impairment
attributable to appellant’s preexisting left knee arthritis.
In his May 26, 2017 addendum report, Dr. Deerhake reviewed appellant’s left knee xray(s) and found that he did not have joint space narrowing on standing x-rays sufficient to show
entitlement to a schedule award for arthritis. He attributed appellant’s symptoms to the left
meniscus surgery, which Dr. Deerhake initially rated in his November 8, 2016 report.
The Board finds that appellant has no more than two percent permanent impairment of the
left lower extremity. In his November 8, 2016 impairment evaluation, Dr. Deerhake identified the
diagnosis as Class of Diagnosis (CDX) one partial lateral meniscectomy using Table 16-3 on page
509 of the A.M.A., Guides, which yielded a default (C) value of two percent. He assigned grade
modifiers for Functional History (GMFH 1) and Physical Examination (GMPE 1), and the net
adjustment (0) resulted in no change from the default value of two percent (grade C).18 An OWCP
medical adviser reviewed the evidence on December 14, 2016 and June 15, 2017 and concurred
with Dr. Deerhake’s findings. There is no probative medical evidence showing more than two
percent permanent impairment of the left lower extremity.19
OWCP received a February 10, 2017 left knee MRI scan, as well as additional reports from
Dr. Krueger. However, Dr. Krueger did not provide an evaluation and/or rating with respect to
the extent of any left lower extremity permanent impairment under the A.M.A., Guides
(6th ed. 2009).20
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.

17

Id. at Chapter 2.808.7a(1); 20 C.F.R. § 10.404(c).

Net Adjustment (0) ꞊ (GMFH 1-CDX 1) + (GMPE 1-CDX 1). See Section 16.3d, A.M.A., Guides 518-21 (6th
ed. 2009).
18

19

See D.I., Docket No. 16-1891 (issued December 7, 2017).

20

See R.M., Docket No. 17-1410 (issued November 9, 2017).

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CONCLUSION
The Board finds that appellant has not established more than two percent permanent
impairment of the left lower extremity, for which he previously received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the November 8, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 24, 2018
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Masillion, OH, Employer
__________________________________________

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

Docket No. 15-266
Issued: April 24, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 17, 2014 appellant, through counsel, filed a timely application for review
from a July 24, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s claim for wage-loss
compensation for intermittent disability for the period July 13 through August 23, 2013.
FACTUAL HISTORY
On June 4, 2013 appellant, then a 51-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that on June 3, 2013, he reinjured his right knee while stepping down into
a ditch to approach a mailbox. A supervisor checked a box indicating that appellant’s injury was
1

5 U.S.C. § 8101 et seq.

caused by willful misconduct or intent to injury oneself, noting that he failed to report an
ongoing hazard that eventually led to this injury. Appellant’s regular schedule was noted as
Monday through Saturday, from 7:30 a.m. until 4:00 p.m., with a rotating Sunday shift. On
September 13, 2013 OWCP accepted his claim for a tear of the medial meniscus of his right knee
and sprain of the right knee and leg.2
In a work status note dated June 4, 2013, Dr. Karl Wodrich, Board-certified in emergency
medicine, stated that appellant had a “restricted work start date” of June 4, 2013 and a “return to
work start date” of June 6, 2013. He stated that appellant was injured at work. On the same
date, Dr. Wodrich reported that appellant was walking the previous day, stepped into a ditch, and
twisted his knee. He noted that appellant had prior arthroscopic surgeries on his knee.
Dr. Wodrich diagnosed appellant with a right knee sprain and a possible ligamentous versus
cartilaginous injury.
On June 17, 2013 Dr. Carly Day, Board-certified in physical medicine and rehabilitation,
stated that appellant was able to return to work as of that day.
In a note dated July 9, 2013, Dr. David H. Krahe, a Board-certified orthopedic surgeon,
stated that appellant was able to return to work on July 15, 2013 to case mail, with restrictions of
standing for only 1 hour at a time with 15-minute breaks.
On July 30, 2013 appellant filed a claim for compensation for leave without pay from
July 13 through 26, 2013. In a time analysis form, he noted that he was claiming 5.92 hours of
leave without pay on July 20, 6.5 hours on July 22, 6.63 hours on July 23, 8 hours on July 24,
2013, and 6.26 hours on July 26, 2013.
On August 12, 2013 appellant filed a claim for compensation for leave without pay from
July 24 through August 9, 2013. In a time analysis form, he noted that he was claiming 5.73
hours of leave without pay on July 27, 6.07 hours on July 29, 5.84 hours on July 30, 6.79 hours
on July 31, 6.07 hours on August 1, 5.66 hours on August 5, 5.83 hours on August 6, 6.61 hours
on August 7, 6.46 hours on August 8, and 6.33 hours on August 9, 2013.
In a note dated August 9, 2013, Dr. Krahe stated that appellant was scheduled for a total
knee arthroplasty on August 12, 2013. He stated that, after that time, appellant would be
incapacitated from work for at least 8 to 12 weeks.
Appellant submitted the results of an ultrasound of his biltateral lower extremities dated
August 15, 2013 and the results of an x-ray of his right knee dated August 12, 2013. He
submitted a report from Dr. Krahe dated July 24, 2013, in which Dr. Krahe stated that appellant
was being seen for right knee arthritis and was scheduled for a right total knee arthroplasty.
On August 27, 2013 appellant filed a claim for compensation for leave without pay from
August 10 through 23, 2013. In a time analysis form, he noted that he was claiming six hours of
leave without pay on August 10, 2013 and eight hours of leave without pay on the days
August 13 through 17, August 19, and 21 through 23, 2013.
2

OWCP had previously accepted loose bodies in the right knee under claim File No. xxxxxx089.

2

In a note dated August 28, 2013, Dr. Day stated that appellant was unable to return to
work for two weeks due to a knee injury and clinical procedure.
In a report dated August 23, 2013, Dr. Krahe summarized the course of a right knee
arthroplasty. He noted that appellant had been admitted on August 12, 2013 and discharged on
August 16, 2013, and that his condition on discharge was stable. Dr. Krahe also authored an
operative report dated August 12, 2013, noting that the preoperative and postoperative diagnoses
were degenerative arthritis of the right knee, and that appellant tolerated the procedure well.
This surgery was not approved by OWCP.
By letter dated September 13, 2013, OWCP requested from Dr. Krahe a well-reasoned
medical opinion explaining how appellant’s arthritis was a direct result of the incident of June 3,
2013 or medical conditions previously accepted as work related.
By letter dated October 10, 2013, counsel requested an update on the status of appellant’s
claims for compensation for wage loss.
On November 15, 2013 OWCP denied appellant’s claim for compensation for leave
without pay from July 13 through August 23, 2013. It stated that he had not provided sufficient
medical evidence from a physician containing an opinion on the relationship between his arthritis
and the surgery of August 12, 2013. OWCP further noted that the reports of Dr. Krahe prior to
August 12, 2013 did not contain a well-reasoned medical opinion establishing that he was
disabled due to his accepted work-related conditions.
On November 21, 2013 appellant, through counsel, requested a telephonic hearing before
OWCP’s Branch of Hearings and Review.
A hearing was held on May 12, 2014. Appellant testified that he had issues with his right
knee before June 2013, noting that he had loose particles taken out in 1997 and residual pain
from his letter carrier duties over the years afterward. He noted that, after the incident of June 3,
2013, he continued to work throughout the summer. Appellant stated that Dr. Krahe had told
him that he had a tear in his knee but that he also had arthritis, and that fixing the tear alone
would not be sufficient, requiring a total knee replacement. He missed time due to this surgery.
Counsel noted that it appeared that appellant’s claim for compensation was rejected because his
claim was accepted for a tear of the meniscus, but notes from his physician indicated that the
surgery was to repair arthritic changes. He argued that it was logical to anticipate that appellant
might have some disability due to the meniscal tear in the days and weeks before his surgery.
Counsel explained to appellant that he was going to attempt to secure a clarification from
Dr. Krahe to explain how appellant’s arthritis was related to the injury on June 3, 2013.
OWCP’s hearing representative stated that appellant needed to submit medical evidence
establishing that time off taken after the date of injury and before surgery was due to the June 3,
2013 injury; and medical evidence establishing that the surgery and time off taken related to the
surgery were also related to the June 3, 2013 incident.
In an impairment report dated May 27, 2014, Dr. Catherine W. Campbell, Board-certified
in occupational and family medicine, provided an impairment rating for appellant’s right knee.
She did not address dates of disability.

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By decision dated July 24, 2014, the hearing representative affirmed the decision dated
November 15, 2013. It found that appellant had not submitted sufficient medical evidence to
support his disability before August 12, 2013. The hearing representative noted that the surgery
was performed for end-stage degenerative arthritis, which had not been established as related to
the June 3, 2013 injury.
LEGAL PRECEDENT
Under FECA, the term disability means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury.3 Disability is thus not
synonymous with physical impairment, which may or may not result in incapacity to earn wages.
An employee who has a physical impairment causally related to a federal employment injury, but
who nevertheless has the capacity to earn the wages he or she was receiving at the time of injury,
has no disability as that term is used in FECA.4 Whether a particular injury causes an employee
disability for employment is a medical issue which must be resolved by competent medical
evidence.5 Whether a particular injury causes an employee to be disabled for work and the
duration of that disability, are medical issues that must be proved by a preponderance of the
reliable, probative, and substantial medical evidence.6
For each period of disability claimed, the employee has the burden of establishing that he
was disabled for work as a result of the accepted employment injury.7 The Board will not
require OWCP to pay compensation for disability in the absence of medical evidence directly
addressing the specific dates of disability for which compensation is claimed. To do so, would
essentially allow an employee to self-certify her disability and entitlement to compensation.8
The medical evidence required to establish a causal relationship, generally, is rationalized
medical opinion evidence.9 The opinion of the physician must be based on a complete factual
and medical background of the employee, must be one of reasonable 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 employee.10

3

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

4

Cheryl L. Decavitch, 50 ECAB 397, 401 (1999).

5

Donald E. Ewals, 51 ECAB 428 (2000).

6

Tammy L. Medley, 55 ECAB 182 (2003); see id.

7

See Amelia S. Jefferson, 57 ECAB 183 (2005). See also David H. Goss, 32 ECAB 24, 27 (1980).

8

See William A. Archer, 55 ECAB 674, 679 (2004); Fereidoon Kharabi, 52 ECAB 291, 293 (2001).

9

See Viola Stanko (Charles Stanko), 56 ECAB 436, 443 (2005); see also Naomi A. Lilly, 10 ECAB 560, 572573 (1959).
10

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (2005).

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ANALYSIS
OWCP accepted that appellant sustained a tear of the medial meniscus of his right knee
and sprain of the right knee and leg by decision dated September 13, 2013. Appellant claimed
that he was disabled intermittently from July 13 through August 12, 2013, at which time he had
arthroscopic surgery that had not been approved by OWCP, and was totally disabled from
August 12 through 23, 2013.
OWCP initially denied his claim by decision dated
November 15, 2013. A hearing representative affirmed this decision on July 24, 2014.
Appellant has the burden of establishing by the weight of the substantial, reliable, and probative
evidence that he was disabled for work for the claimed period due to his accepted injuries.11
In a note dated July 9, 2013, Dr. Krahe stated that appellant was able to return to work on
July 15, 2013 to case mail, with restrictions of standing for only 1 hour at a time with 15-minute
breaks. In a note dated August 9, 2013, he stated that appellant was scheduled for a total knee
arthroplasty on August 12, 2013. Dr. Krahe stated that, after that time, appellant would be
incapacitated from work for at least 8 to 12 weeks. In a report from him dated July 24, 2013, he
stated that appellant was being seen for right knee arthritis and was scheduled for a right total
knee arthroplasty. In a report dated August 23, 2013, Dr. Krahe summarized the course of a
right knee arthroplasty. He noted that appellant had been admitted on August 12, 2013 and
discharged on August 16, 2013, and that his condition on discharge was stable. Dr. Krahe also
authored an operative report dated August 12, 2013, noting that the preoperative and
postoperative diagnoses were degenerative arthritis of the right knee, and that appellant tolerated
the procedure well.
Dr. Krahe addressed specific dates of disability in his reports, but the diagnosis related to
appellant’s disability was arthritis rather than the accepted conditions of a tear of the medial
meniscus of his right knee and sprain of the right knee and leg. At the hearing on May 12, 2014,
both appellant’s counsel and the hearing representative noted that a supplementary report from
Dr. Krahe would explain how appellant’s disability from July 13 through August 12, 2013 was
related to his injury on June 3, 2013; and also how his surgery, or need for surgery due to
arthritis, was related to the injury on June 3, 2013. However, no such report from Dr. Krahe was
submitted. The only additional medical evidence submitted subsequent to the hearing was an
impairment report from Dr. Campbell, which did not address specific dates of disability or the
relation of appellant’s arthritis to the injury of June 3, 2013. As appellant has not submitted
medical reports containing medical rationale relating his dates of disability to his accepted
conditions under claim File No. xxxxxx063, he has not met his burden of proof to establish
disability for the period July 13 through August 23, 2013. Therefore, OWCP’s July 24, 2014
decision denying appellant’s claim for wage-loss compensation for these dates was proper under
the facts and law of the case.
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.

11

Alfredo Rodriguez, 47 ECAB 437 (1996).

5

CONCLUSION
The Board finds that OWCP properly denied appellant’s claim for wage-loss
compensation for the period July 13 through August 23, 2013.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 24, 2014 is affirmed.
Issued: April 24, 2015
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief 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.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Absecon, NJ, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 12-1434
Issued: February 27, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On June 22, 2012 appellant filed a timely appeal of a June 8, 2012 merit decision of the
Office of Workers’ Compensation Programs (OWCP).
The appeal was docketed as
No. 12-1434.
The June 8, 2012 OWCP decision denies appellant’s February 15, 2011 claim for an
emotional condition. OWCP noted that she had claimed harassment and bullying from
management and other employees, including a noose that was hanging in the office. In the
June 12, 2012 decision, it reviewed the evidence of record and found that appellant had not
established that the claimed emotional condition occurred during the performance of duty. As
part of its conclusion, OWCP stated that “most of your claimed factors of employment, including
the noose and the harassment by management in 2010 have already been claimed under your
other claim for an emotional condition filed on January 24, 2010 (case file number xxxxxx247).”
The Board finds that, if appellant has filed a prior claim with similar allegations, then the
case records must be combined for a proper adjudication of the issues. It is not clear whether
there is relevant evidence as to the alleged work factors discussed in the present case that are
located in the prior claim. It is also unclear as to whether all of appellant’s current allegations
have been adjudicated in the prior claim. As the Board noted in R.W., all the records pertaining
to the claim are necessary for complete consideration and adjudication of the issues presented on

appeal.1 The case will be remanded for proper consolidation of the case records. After such
further development as OWCP deems necessary, it should issue an appropriate merit decision to
protect appellant’s appeal rights.
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 8, 2012 is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: February 27, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

1

Docket No. 12-287 (issued July 26, 2012) (case was remanded for proper consolidation of case records).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________

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

Docket No. 08-268
Issued: June 10, 2008

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 October 29, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ October 25, 2007 nonmerit decision which denied her request for
reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction
over this nonmerit decision. The last merit decision of record was the Office’s September 20,
2006 decision. Because more than one year has elapsed between the last merit decision and the
filing of this appeal on October 29, 2007, the Board lacks jurisdiction to review the merits of this
claim.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits of her claim on the grounds that her request was untimely filed and failed to
demonstrate clear evidence of error.

FACTUAL HISTORY
On December 26, 2003 appellant, then a 30-year-old mail processor, filed an
occupational disease claim alleging that she sustained an injury to her back, neck, legs and left
side of the body as a result of her employment duties. The Office accepted her claim for
aggravation of cervical, lumbar and thoracic strains as well as cervical, lumbar and thoracic
myofascitis.
On August 4, 2004 appellant filed two notices of recurrence claiming total disability for
the time periods June 4 to 11, 27 and July 22 to 25, 2004. She also filed several claims for
compensation for the periods May 16 to June 11, June 27 to July 25 and August 6 to 28, 2004.
On September 14, 2004 the Office denied appellant’s recurrence and subsequent wage
losses for the period June 3 to 11 and June 27 to July 25, 2004.
On September 20, 2004 the Office issued a revised decision which again denied
appellant’s claim.
On September 23, 2004 the Office issued a modified decision replacing the September 14
and 20, 2004 decisions and stating that the wage-loss claim for the period June 27 and July 22 to
25, 2004 was being developed and was not denied at that time.
Appellant filed additional claims for compensation for the time periods September 2 to
10 and 16 to 29, 2004. She had been working in limited duty since April 2004.
On September 30, 2004 appellant requested reconsideration and submitted additional
information.
In a November 9, 2004 merit decision, the Office denied modification of the
September 23, 2004 decision which denied appellant’s claim for recurrence.
Appellant filed additional claims for recurrence and compensation for the following time
periods October 1, 14 and 17, October 3 to November 5, November 21 to December 5 and
November 26 to December 8, 2004, January 19 to February 4, February 5 to 18 and February 19
to March 4, 2005.
On December 29, 2004 the Office accepted appellant’s claim for the following
conditions: aggravation of cervical strain; cervical and thoracic myofascitis; thoracic sprain;
lumbar sprain and lumbar myofascitis.
In an April 8, 2005 decision, the Office denied appellant’s claim for recurrence and
subsequent claims for compensations for the time periods June 27, August 11 to 27 and
October 1 to November 5, 2004, January 19 to February 4 and February 5, 2005 and continuing
finding that the evidence did not establish that appellant was unable to perform restricted-duty
work due to a worsening of her accepted conditions.
Appellant filed additional claims for recurrences and compensation for the time periods
January 9 to 19, January 9 to 16, March 21 to May 20 and April 7 to May 20, 2005.

2

On May 27, 2005 appellant requested reconsideration.
In a July 19, 2005 merit decision, the Office denied modification of the April 8, 2005
decision.
On March 22, 2006 the Office issued an amended decision modifying the April 8, 2005
decision to include the period November 21 to December 5, 2004 to the list of time periods
denied compensation.
Appellant filed additional claims for compensation for the periods November 4, 2005 to
March 31, 2006, and March 17 to May 3, 2006.
On June 20, 2006 appellant requested reconsideration of the March 22, 2006 decision.
Appellant filed additional claims for compensation for the periods May 5 to July 14 and
July 21 to August 18, 2006.
On September 20, 2006 the Office modified the March 22, 2006 decision to accept that
appellant sustained a recurrence on June 3, 2004 and was entitled to compensable wage loss for
the period June 3 to 11, 2004 and wage loss for medical care on August 15, October 14 and 15,
2004 for a total of 61.33 hours of combined wage loss.
In a September 20, 2006 letter, Dr. Annemarie Poleck, an osteopath, provided
impairment rating of appellant’s conditions.
Appellant submitted office notes from the Eisman Clinic, which stated that she had an
appointments on certain dates in 2006 and 2007. In a November 20, 2006 letter, Dr. Jeffrey
Eisman, a chiropractor, listed the dates appellant was seen in the office during the fall of 2006.
In a May 1, 2007 letter, Dr. Polek addressed the Office’s questions regarding appellant’s current
condition. In a June 14, 2006 letter, Dr. Eisman addressed the second opinion physician’s report
regarding appellant’s need for continuing treatment.
In a September 21, 2007 letter, appellant requested reconsideration of the September 20,
2006 decision.
On October 25, 2007 the Office issued a nonmerit decision denying reconsideration on
the grounds that appellant’s request was untimely and did not present clear evidence that the
Office’s last merit decision was incorrect.
LEGAL PRECEDENT
The Office, through regulation, has imposed limitations on the exercise of its
discretionary authority under section 8128(a) of the Federal Employees’ Compensation Act.1
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.2 When an application for review is
1

5 U.S.C. §§ 8101-8193.

2

20 C.F.R. § 10.607; see also Alan G. Williams, 52 ECAB 180 (2000).

3

untimely, the Office undertakes a limited review to determine whether the application presents
clear evidence that the Office’s final merit decision was in error.3 The Office procedures states
that the Office will reopen a claimant’s case for merit review, notwithstanding the one-year filing
limitation set forth in 20 C.F.R. § 10.607, if the claimant’s application for review shows clear
evidence of error on the part of the Office.4 In this regard, the Office will limit its focus to a
review of how the newly submitted evidence bears on the prior evidence of record.5
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office. The evidence must be positive, precise and explicit and must
be manifest on its face that the Office committed an error. Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.6 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. 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. To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinions 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.7 The Board makes 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.8
ANALYSIS
The Office properly determined that appellant failed to file a timely application for
review. The Office’s procedures provide that the one-year time limitation period for requesting
reconsideration begins on the date of the original Office decision. A right to reconsideration
within one year also accompanies any subsequent merit decision on the issues.9 In this case,
appellant’s September 21, 2007 letter requesting reconsideration was submitted more than one
year after the last merit decision issued on September 20, 2006 and is therefore untimely. As

3

Veletta C. Coleman, 48 ECAB 367 (1997).

4

See Gladys Mercado, 52 ECAB 255 (2001). Section 10.607(b) provides: 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. 20 C.F.R.
§ 10.607(b).
5

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

6

Leon J. Modrowski, 55 ECAB 196 (2004); Dorletha Coleman, 55 ECAB 143 (2003).

7

Id.

8

Pete F. Dorso, 52 ECAB 424 (2001); John Crawford, 52 ECAB 395 (2001).

9

Veletta C. Coleman, 48 ECAB 367 (1997).

4

appellant’s request was untimely she must demonstrate clear evidence of error by the Office in
denying her recurrence and claims for compensation.10
Appellant has not demonstrated clear evidence of error on the part of the Office in issuing
its September 20, 2006 decision. She did not submit the type of positive, precise and explicit
evidence which manifests on its face that the Office committed an error. The September 20,
2006 decision modified the March 22, 2006 decision which denied appellant’s claim on the
grounds that she did not establish that her claims for recurrences and subsequent claims for
compensation for the periods June 27, August 11 to 27,11 October 1 to November 5,12
November 21 to December 5, 2004, January 19 to February 4 and February 5 to March 4, 200513
were causally related to her accepted conditions.
Appellant did not submit any evidence relevant to the time periods at issue therefore she
did not raise a substantial question concerning the correctness of the Office’s October 25, 2007
decision and the Office properly determined that appellant did not show clear evidence of error
in the decision.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of her claim on the grounds that her request was untimely filed and failed to
demonstrate clear evidence of error.

10

20 C.F.R. § 10.607(b).

11

Except August 15, 2004 which was accepted for wage loss in the September 20, 2006 decision.

12

Except October 14 and 15, 2004 which were accepted for wage loss in the September 20, 2006 decision.

13

The original denial on April 8, 2005 stating the time period was “February 5, 2005 and continuing” but as
appellant has filed additional claims for compensation the closed time period of “February 5 to March 4, 2005” will
be used.

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
October 25, 2007 decision is affirmed.
Issued: June 10, 2008
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
__________________________________________
C.C., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
Albuquerque, NM, Employer
__________________________________________

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

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Docket No. 20-1323
Issued: March 2, 2021

Case Submitted on the Record

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

On June 23, 2020 appellant, through counsel, filed a timely appeal from an April 28, 2020
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2 The Clerk of the
Appellate Boards docketed the appeal as No. 20-1323.3

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

Counsel did not appeal from OWCP’s January 15, 2020 merit decision. Therefore, it is not properly before the
Board on this appeal. See 20 C.F.R. § 501.3.
3

The Board notes that, following the April 28, 2020 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.

On May 18, 1994 appellant, then a 28-year-old contact representative, filed a traumatic
injury claim (Form CA-1) alleging that on that date, she slipped on the restroom floor, hit her left
arm, and landed on her tail bone, while in the performance of duty. OWCP assigned this claim
File No. xxxxxx445 and accepted it for lumbar sprain, right knee and leg sprain, left wrist sprain,
recurrent dislocation of the left forearm, tear of the medial meniscus of the right knee and
lumbosacral spondylosis, without myelopathy.4
Appellant stopped work on May 18, 1994, was referred to vocational rehabilitation by
OWCP on August 31, 1995, started classes, but was unable to complete the program due to
nonwork-related issues. She subsequently was able to secure employment on her own. Appellant
stopped work again on August 24, 2005, was released to return to limited-duty work on October 5,
2005, but did not return. The record reflects that OWCP initially paid appellant intermittent wageloss compensation on the supplemental rolls and then on the periodic rolls, as June 16, 2002.
Appellant’s treating physician, Dr. Kira A. Paisley, a Board-certified family practitioner,
continued to submit medical reports to OWCP. In a report dated September 24, 2019, she related
that appellant was seen for lumbosacral spondylosis, without myelopathy, which caused pain and
limited her ability to sit, stand for long periods of time, or walk for more than a few blocks; sprain
and strain of the lumbosacral joint/ligament; tear of the medial meniscus of the knee which was
chronic and likely to deteriorate; chronic left wrist sprain which was not likely to improve; and
recurrent joint dislocation of the forearm.
OWCP referred appellant to Dr. Adam J. Farber, Board-certified in sports medicine and
orthopedic surgery for a second opinion examination. In a report dated November 8, 2019,
Dr. Farber related that appellant’s accepted employment-related conditions included lumbar, right
knee, and left wrist sprains; as well as lumbosacral spondylosis; and status post right knee partial
medial and lateral meniscectomy and chondroplasty. He concluded that appellant’s lumbar, right
knee and left wrist sprains had resolved. Dr. Farber also noted that appellant appeared to be
suffering residual symptoms related to the accepted diagnosis of lumbar spondylosis, based upon
her pain complaints as well as x-ray and magnetic resonance imaging scan findings. He further
noted that appellant’s lumbar spine pathology did not require work restrictions, because appellant’s
treating orthopedic surgeon had not provided work restrictions when he last saw her on
December 15, 2014. In a supplemental report dated November 22, 2019, Dr. Farber repeated his
previous conclusions.
By decision dated January 15, 2020, OWCP terminated appellant’s wage-loss
compensation effective that date. It relied upon the report of the second opinion physician,
Dr. Farber. OWCP found that the reports from the treating physician, Dr. Paisley, did not provide
a clear and well-reasoned explanation, supported by objective findings, as to how the accepted
4

The statements of accepted facts (SOAF) dated June 6, 2005, January 23, 2006, February 28, 2011, and
November 25, 2014 described a prior OWCP claim pertaining to a motor vehicle accident on August 20, 1991, which
OWCP accepted for exacerbation of a preexisting fibromyalgia condition. In the SOAFs, OWCP related that appellant
remained off work until November 1991, when she returned to her regular duties part time, four hours per day, five
days per week, taking intermittent sick leave. Appellant stopped work again in June 1992 and then returned to
sedentary duties of a contact representative/tele-service representative. The record does not identify an OWCP file
number associated with this claim and no other evidence is available regarding this claim.

2

conditions disabled appellant from performing her date-of-injury position. It explained that the
reports from Dr. Paisley did not explain how the accepted conditions of lumbar sprain, right knee
sprain, and left wrist sprain had not resolved within six months.
OWCP received additional evidence including February 14, and March 10, 2020, reports
from Dr. Paisley, a February 17, 2020 request for medical equipment related to appellant’s LS-S1
spondylosis for pain management from Dr. A. Paterson, a Board-certified orthopedic surgeon, and
physical therapy notes dating from December 4, 2019 to January 30, 2020.
On April 20, 2020 appellant, through counsel, requested reconsideration. Counsel argued
that the report from Dr. Farber suggested that he was under the impression that the claim was only
approved for lumbar sprain, right wrist sprain, and left wrist sprain. He argued that Dr. Farber
failed to fully address the approved condition of lumbosacral spondylosis, and his report therefore
was of limited probative value. Counsel argued that the January 15, 2020 decision should be
vacated and appellant’s benefits restored.
By decision dated April 28, 2020, OWCP denied appellant’s request for reconsideration of
the merits of her claim.
The Board finds that this case is not in posture for decision.
Section 8124(a) of FECA provides that OWCP shall determine and make findings of fact
and make an award for or against payment of compensation. Its regulations at 20 C.F.R. § 10.126
provide that the decision of the Director of OWCP shall contain findings of fact and a statement
of reasons. As well, OWCP’s procedures provide that the reasoning behind OWCP’s decision
should be clear enough for the reader to understand the precise defect of the claim and the kind of
evidence which would overcome it.5
In the April 28, 2020 decision, OWCP did not reference or discuss the argument and
evidence submitted after the January 15, 2020 merit decision.6 Appellant’s counsel had alleged
that the reports from the second opinion physician, Dr. Farber had not fully addressed all of the
accepted conditions. Furthermore, the Board notes that OWCP had received additional medical
reports following January 15, 2020 decision, including additional medical reports from appellant’s
treating physician, Dr. Paisley dated February 14 and March 10, 2020. As such, OWCP did not
discharge its responsibility to set forth findings of fact and a clear statement of reasons explaining
the disposition so that appellant could understand the basis for the decision, i.e., why the argument
and evidence had not met any of the requirements of 20 C.F.R. § 10.606(b)(3), to require OWCP
to reopen the case for review of the merits of the claim.7 This case must therefore be remanded to
OWCP for an appropriate decision on appellant’s reconsideration request that describes the

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013).

6

See B.S., Docket No. 20-1008 (issued November 13, 2020); R.T., Docket No. 19-0604 (issued September 13,
2019); T.M., Docket No. 17-1609 (issued December 4, 2017).
7

See J.J., Docket No. 11-1958 (issued June 27, 2012).

3

evidence submitted on reconsideration and provides detailed reasons for accepting or rejecting the
reconsideration request.
IT IS HEREBY ORDERED THAT the April 28, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this order of the Board.
Issued: March 2, 2021
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Spartanburg, SC, Employer
__________________________________________

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

Docket No. 07-1895
Issued: February 22, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 4, 2007 appellant filed a timely appeal from a May 2, 2007 schedule award
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the schedule award determination in this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she has greater
than 20 percent left lower extremity impairment for which she received a schedule award.
FACTUAL HISTORY
On April 26, 2004 the Office accepted that appellant, then a 42-year-old city carrier,
sustained an employment-related left rotator cuff sprain/strain and an injury to her left anterior
cruciate ligament (ACL). On May 27, 2004 the Office accepted that she sustained a right rotator
cuff sprain and bilateral osteoarthritis of the knees. Appellant stopped work on May 24, 2004
and on May 27, 2004 had surgery to her right shoulder. She was placed on the periodic rolls and
on September 14, 2004 underwent left knee arthroscopic lysis of adhesions, repair of

microfracture of the lateral trochlear groove and major tricompartmental debridement of the left
knee. In September 2004, appellant moved to Charlotte, North Carolina, and on January 11 and
March 3, 2005 she had surgery to her right knee.1 On April 11, 2006 she underwent surgery on
both shoulders.2
Appellant submitted treatment notes from Dr. Jan H. Postma, Jr., a Board-certified
orthopedic surgeon, dating from February 21, 2002 to December 22, 2003 which noted a history
of left knee pain. On March 12, 2002 Dr. Postma stated that magnetic resonance imaging (MRI)
scan of the left leg demonstrated a medial meniscus tear and advised that appellant would have
surgical repair. An operative note dated March 18, 2002 indicated that the procedure consisted
of arthroscopy, chondroplasty and synovectomy.
On October 19, 2006 the Office referred appellant to Dr. James F. Bethea, Boardcertified in orthopedic surgery, regarding her injury-related disability and current work capacity.
In a November 13, 2006 report, he noted a history of three left knee surgeries and that left knee
x-ray revealed degenerative change in all three compartments. Dr. Bethea diagnosed Grade 4
osteoarthritis of the left knee. Appellant elected civil service retirement on December 15, 2006.
On March 3, 2007 appellant filed a schedule award claim. In a November 2, 2006 report,
Dr. Postma provided an impairment rating in accordance with the guide of the orthopedic
academy. He advised that x-ray demonstrated a two-millimeter interval in appellant’s left knee
and concluded that she had a 20 percent impairment of the left knee. By report dated
December 11, 2006, Dr. Bartley McGehee provided examination findings.3 He advised that
appellant’s left knee revealed mild effusion, pain with patella grind and tenderness to palpation
about the patella. Range of motion was from 0 to 125 degrees. In a March 8, 2007 report,
Dr. Walter Grady, a Board-certified osteopath specializing in orthopedic surgery, advised that
examination of appellant’s left knee revealed +1 effusion, crepitation on range of motion, 0 to
125 degrees of flexion extension, passive extension of 0 degrees, passive flexion of 120 degrees,
pain with lateral McMurray’s test, negative drawer and Lachman’s tests. Medial and collateral
ligaments were intact without evidence of instability. He concluded that, in accordance with the
1

The Office continued to develop the claim and on April 21, 2005 referred her to Dr. Surendrapal S. Mac, a
Board-certified orthopedic surgeon, for a second opinion evaluation. Finding a conflict in medical evidence
between his opinion and that of appellant’s attending physician, Dr. Richard J. Hawkins, also Board-certified in
orthopedic surgery, regarding appellant’s continued disability and work restrictions, on July 1, 2005 the Office
referred appellant to Dr. Neal S. Taub, a Board-certified physiatrist, for an impartial medical evaluation. Based on
Dr. Taub’s reports and a functional capacity evaluation that appellant underwent on August 22, 2005, the employing
establishment, on December 9, 2005, offered appellant a position for four hours of sedentary duty. She refused the
position on December 20, 2005, alleging that she could not drive and was to have bladder surgery and, by letter
dated February 14, 2006, the Office informed the employing establishment that the offered position was not suitable.
2

By letter dated January 1, 2006, appellant requested that interstitial cystitis, depression and hypertension be
accepted as employment related. Office regulations define a “claim” as a written assertion of an individual’s
entitlement to benefits under the Federal Employees’ Compensation Act, submitted in an authorized manner. 20
C.F.R. § 10.5(c); see Margie T. Smith (J.B. Smith), 56 ECAB 349 (2005). Thus, appellant’s request would be
considered a valid claim. The record before the Board, however, does not contain a final decision regarding this
request and the Board’s jurisdiction is limited to reviewing final decisions of the Office. 20 C.F.R. § 501(c); see
Karen L. Yaeger, 54 ECAB 323 (2003).
3

Dr. McGehee’s credentials could not be ascertained.

2

American Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter
A.M.A., Guides),4 appellant had 30 percent left knee impairment.
In reports dated March 15 to April 24, 2007, an Office medical adviser reviewed the
medical evidence of record. Because Dr. Postma used the orthopedic academy guide rather than
the A.M.A., Guides, he had not properly rated appellant’s impairment. He advised that
Dr. Grady’s March 8, 2007 report found decreased range of motion which represented 10 percent
impairment under Table 17-10. However, under the Cross-Usage Chart, Table 17-2, impairment
for arthritis could not be combined with impairment for loss of motion. The Office medical
adviser determined that maximum medical improvement was reached six months after the
September 14, 2004 surgery. He noted Dr. Bethea’s finding of degenerative changes seen in all
three knee compartments on x-ray and advised that, under Table 17-31 of the A.M.A., Guides, a
two-millimeter cartilage interval would represent 20 percent impairment of the left knee.
However, as she previously received a schedule award for 20 percent left lower extremity
impairment on May 9, 2003 under file number 062057381, she was not entitled to any additional
award for her left lower extremity impairment.5
On April 25, 2007 appellant requested that her schedule award be paid in a lump sum.
On May 2, 2007 appellant was granted a schedule award for 20 percent loss of use of the
left arm, 21 percent loss of use of the right arm and 17 percent loss of use of the right leg. It was
noted that she previously received a schedule award for 20 percent loss of use of the left leg and
that she had no greater impairment to the extremity.
LEGAL PRECEDENT
Under section 8107 of the Federal Employees’ Compensation Act6 and section 10.404 of
the implementing federal regulations,7 schedule awards are payable for permanent impairment of
specified body members, functions or organs. The Act, however, does not specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice under the law for 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 Office, and the Board has concurred in such adoption,
as an appropriate standard for evaluating schedule losses.8 Chapter 17 provides the framework
for assessing lower extremity impairments.9 Office procedures indicate that referral to an Office
4

A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

5

Drs. Bethea, Postma, McGehee, Grady and the Office medical adviser provided findings and conclusions
regarding all extremities.
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

See Joseph Lawrence, Jr., supra note 4; James J. Hjort, 45 ECAB 595 (1994); Leisa D. Vassar, 40 ECAB
1287 (1989); Francis John Kilcoyne, 38 ECAB 168 (1986).
9

A.M.A., Guides 523-64.

3

medical adviser is appropriate when a detailed description of the impairment from the attending
physician is obtained.10
ANALYSIS
The Board finds that appellant does not have greater than the 20 percent left lower
extremity impairment previously awarded. Table 17-31 of the A.M.A., Guides provides for
impairments based on cartilage intervals determined by x-ray.11 In this case, in accordance with
Table 17-31, appellant has 20 percent left lower extremity impairment based on two millimeters
of knee cartilage interval reported by Dr. Postma as seen on x-ray in his November 2, 2006
report. The Office medical adviser agreed with his rating in his March 23, 2007 report. While
Dr. Grady also found loss of motion deficits, Table 17-2 of the A.M.A., Guides describes the
types of impairment ratings that cannot be combined. It notes that loss of motion cannot be
combined with an impairment rating for arthritis.12 Furthermore, schedule awards under the Act
are to be based on the A.M.A., Guides. While Dr. Grady stated that he used the A.M.A., Guides,
he did not reference any specific tables or figures. It is unclear how he arrived at his conclusion
that appellant had 30 percent left knee impairment. Therefore, his opinion is of diminished
probative value.13 The Office medical adviser properly concluded that appellant had 20 percent
right lower extremity impairment.
There is no other medical evidence in the record that provides a proper rating for
appellant’s left lower extremity impairment. Appellant did not establish that she has more than
the 20 percent impairment previously awarded.14
CONCLUSION
The Board finds that appellant has not established that she has more than 20 percent
impairment of her left leg.

10

Thomas J. Fragale, 55 ECAB 619 (2004).

11

A.M.A., Guides 544.

12

Id. at 526.

13

Deborah J. Cottle, 53 ECAB 284 (2002).

14

Under Table 17-2 of the A.M.A., Guides, diagnosis-based estimates can be combined with an impairment
rating for arthritis. A.M.A., Guides, supra note 4 at 526. While Dr. Postma advised in March 2002 that appellant
had a medial meniscus tear, his operative note dated March 18, 2002 indicated that the procedure performed was a
chondroplasty and synovectomy, which are not covered under the diagnosis-based estimates found in Table 17-33.
The procedure performed on September 14, 2004 consisted of lysis of adhesions, repair of microfracture of the
lateral trochlear groove and major tricompartmental debridement of the left knee. These are not covered conditions
under Table 17-33. Id. at 546. Appellant has therefore not established that she is entitled to an additional schedule
award under Table 17-33.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 2, 2007 be affirmed.
Issued: February 22, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5