United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
GENERAL SERVICES ADMINISTRATION,
Burlington, NJ, Employer
__________________________________________

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

Docket No. 13-29
Issued: April 3, 2013

Case Submitted on the Record

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

JURISDICTION
On October 3, 2012 appellant, through his attorney, filed a timely appeal from a June 26,
2012 merit decision of the Office of Workers’ Compensation Programs (OWCP) which denied
an additional schedule award. 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 met his burden of proof to establish that he has more than
five percent impairment of either upper extremity for which he received schedule awards.
FACTUAL HISTORY
On August 5, 1999 appellant, then a 40-year-old materials handler, filed an occupational
disease claim alleging that he suffered from bilateral carpal tunnel syndrome as a result of
operating a forklift, unloading trucks and taking pallets out at work. He stopped work on
1

5 U.S.C. § 8101 et seq.

August 3, 1999 and underwent authorized right and left carpal tunnel releases. Appellant
sustained a left knee sprain on and a cervical sprain in the performance of duty.2 On
December 26, 2002 he returned to limited duty as a modified materials handler. On June 3, 2003
appellant sustained a recurrence of injury and stopped work again. He underwent vocational
rehabilitation. On June 28, 2004 appellant returned to work as a part-time school bus driver for
four hours per day, five days a week.
On June 4, 2003 appellant filed a schedule award claim. In a March 10, 2003 report,
Dr. David Weiss, an osteopath, reviewed appellant’s history and conducted an examination. He
diagnosed bilateral carpal tunnel syndrome, bilateral radial nerve neuropathy and bilateral
brachial plexus neuropathy. According to the fifth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (hereinafter, A.M.A., Guides), Dr. Weiss
opined that appellant had 34 percent combined left upper extremity impairment, 17 percent total
right upper extremity and 11 percent left lower extremity impairment. He reported that appellant
reached maximum medical improvement on March 10, 2003. In an April 26, 2005 report, the
district medical adviser (DMA) disagreed with Dr. Weiss’s report and stated that appellant
suffered no permanent impairment as a result of his accepted bilateral carpal tunnel condition.
By decision dated April 26, 2005, OWCP denied appellant’s schedule award claim finding
insufficient medical evidence to establish that he sustained a permanent impairment as a result of
his accepted conditions.
On September 2, 2005 appellant submitted a request for
reconsideration. By decision dated November 9, 2005, OWCP granted him a schedule award for
five percent permanent impairment of each upper extremity. This award was based on the
October 30, 2005 findings of the DMA.3 The award ran for a total of 31.20 weeks from
October 30, 2005 to June 5, 2006.
By decisions dated March 22, 2006, November 16, 2007 and July 29, 2008, an OWCP
hearing representative remanded the case for referral to an impartial medical examination to
resolve a conflict in medical opinion between Dr. Weiss and the medical adviser.
Following the March 22, 2006 decision, OWCP referred appellant’s case to Dr. Harvey
Baron, a Board-certified orthopedic surgeon and impartial medical examiner. In a May 9, 2007
report, Dr. Baron opined that appellant had no permanent partial loss of use of the upper right
and left upper extremities. He noted that a January 30, 2007 electromyogram (EMG) study
appeared normal in nature and that appellant demonstrated good range of motion and strength in
the upper extremities.
Following the November 16, 2007 and July 29, 2008 decisions, OWCP referred
appellant’s case to Dr. Edward Krisiloff, a Board-certified orthopedic surgeon, selected as the
impartial medical adviser. In a December 17, 2007 report, Dr. Krisiloff noted appellant’s
diagnosis of post bilateral carpal tunnel syndrome and that he suffered from degenerative
2

The two claims were combined with File No. xxxxxx816 as the master file.

3

In an October 30, 2005 report, the DMA stated that medical reports revealed that appellant’s median nerve was
two degrees to pain. He opined that, according to page 495 of the fifth edition of the A.M.A., Guides, appellant had
five percent permanent impairment for each upper extremity. The DMA stated that appellant reached maximum
medical improvement on August 11, 2005.

2

cervical disc syndrome unrelated to his former employment as a materials handler. He stated
that physical examination revealed no objective findings to support permanent impairment.
Dr. Krisiloff reported that according to the fifth edition of the A.M.A., Guides appellant’s
physical findings did not support any permanent impairment in addition to the five percent
previously awarded. He noted a date of maximum medical improvement of February 2002,
approximately 12 weeks after his second surgery. In a November 21, 2008 supplemental report,
Dr. Krisiloff opined that there were no objective findings to support appellant’s complaints of
bilateral carpal tunnel and determined that he did not have bilateral upper extremity impairment
greater than the five percent to each arm. He also reported that there were no physical
examination findings to establish that appellant continued to suffer residuals from his cervical
sprain and no permanent impairment was warranted. Dr. Krisiloff explained that appellant’s
current complaints resulted from his degenerative cervical disc disease, which was not work
related.
By decision dated December 8, 2008, OWCP denied any additional schedule award based
on the November 21, 2008 report of Dr. Krisiloff, who determined that the medical evidence did
not support more than five percent permanent impairment of either upper extremity.
On December 12, 2008 appellant submitted a request for an oral hearing, which was held
on June 25, 2010. He, through counsel, contended that Dr. Krisiloff’s report was insufficient to
resolve the conflict of medical opinion under the A.M.A., Guides and should have considered
appellant’s preexisting cervical condition in his impairment evaluation.
In a November 5, 2010 report, Dr. Weiss resubmitted his 2003 report undated to reflect
the sixth edition of the A.M.A., Guides. He set forth findings from the 2003 examination of
appellant. Dr. Weiss opined that according to the sixth edition of the A.M.A., Guides appellant
sustained 5 percent impairment of each wrist for entrapment neuropathy of the median nerve,4 5
percent impairment for class 1 sensory deficit at the C5 and C6,5 and 1 percent for class 1
sensory deficit right C7 nerve root6 or a total of 11 percent for each upper extremity impairment.
He also reported that appellant had three percent left lower extremity impairment.7 Dr. Weiss
stated that appellant reached maximum medical improvement on March 10, 2003.
By decision dated December 13, 2010, an OWCP hearing representative set aside the
December 8, 2008 decision finding that Dr. Krisiloff’s report was not well rationalized because
he failed to consider appellant’s preexisting degenerative cervical disc disease symptoms in his
impairment rating despite objective EMG and nerve conduction study results. The case was
remanded for a new referee physician to determine if appellant had additional impairment of the
upper extremities according to the sixth edition of the A.M.A., Guides.

4

A.M.A., Guides 406, Table 15-7.

5

Id. at 434, Table 15-20.

6

Id.

7

Id. at 509, Table 16-3; id. at 516, Table 16-6.

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OWCP referred appellant’s claim to Dr. Michael Silverstein, a Board-certified orthopedic
surgeon, for an impartial medical examination to determine the extent of appellant’s permanent
impairment for his accepted conditions in accordance with the sixth edition of the A.M.A.,
Guides (2008).
In a November 16, 2011 report, Dr. Silverstein reviewed appellant’s history, including
the statement of accepted facts and noted that his claim was accepted for bilateral carpal tunnel
syndrome. He reported that he did not have the EMG results dated December 27, 1999 to
February 28, 2008 or functional capacity evaluations dated August 26, 2002 to March 14, 2007.
Examination of the cervical spine revealed symmetrical and full range of motion with a few
scattered trigger points in the cervical paraspinal musculature. Adson maneuver was mildly
positive bilaterally with subjective complaints. Upon examination of appellant’s elbows,
Dr. Silverstein observed full range of motion, normal manual motor testing, symmetrical grip
strength and negative Tinel’s sign over the ulnar nerve. Examination of his bilateral hand and
wrist revealed full range of motion and a healed incision compatible with carpal tunnel surgery.
Phalen’s maneuver was negative and median nerve sensibility and palmar abduction was normal.
Palmaris longus was also present. Dr. Silverstein noted that examination of the ulnar nerve
revealed intact flexor profundus to ring and little finger. Allen test showed slow filling from the
ulnar artery. Dr. Silverstein stated that x-rays of appellant’s cervical spine revealed mild-tomoderate degenerative changes at C4-5 and C5-6 with anterior osteophyte formation at both
levels. X-rays of appellant’s left wrist demonstrated normal carpal alignment and minimal
degenerative changes at the basal joint. X-rays of his right wrist revealed a small
ossification/calcification in the area of the ulnar head and mild degenerative changes of the basal
joint of the thumb.
Dr. Silverstein reported that range of motion and motor and sensory examinations
showed no objective evidence to support appellant’s subjective complaints of bilateral carpal
tunnel syndrome. He agreed with the opinions of Dr. Baron and Dr. Krisiloff that the objective
physical examination findings did not support appellant’s subjective carpal tunnel syndrome
complaints and noted that, even after successful carpal tunnel surgery, he had permanent
subjective sensory complaints. Dr. Silverstein noted that the January 30, 2007 electrodiagnostic
studies were benign. He opined that appellant’s bilateral carpal tunnel syndrome was causally
related to the repetitive nature of his employment, but concluded that his cervical spine
symptoms were degenerative in origin and not caused or aggravated by appellant’s
December 2000 employment injury. Dr. Silverstein explained under the sixth edition of the
A.M.A., Guides and the diagnosis-impairment method, appellant was classified as class 0 with
no objective findings of his upper extremity or whole person. He concluded that appellant had
no (zero percent) upper extremity or whole person impairment. Regarding Dr. Weiss’s
impairment evaluations, Dr. Silverstein explained that Dr. Weiss did not provide any objective
findings to support his conclusions. He reported that the objective findings he noted during his
evaluation most closely corroborated the findings of Drs. Baron and Krisiloff. Dr. Silverstein
stated that appellant reached maximum medical improvement for his wrists on July 1, 1998 for
the right wrist and January 1, 2002 for the left wrist.
In a December 22, 2011 report, a medical adviser reviewed Dr. Silverstein’s impartial
medical report. He noted that Dr. Silverstein based his zero percent impairment rating on normal
testing of the thenar strength and lack of objective evidence. The medical adviser agreed with

4

Dr. Silverstein’s conclusion that, according to Chapter 15 of the sixth edition of the A.M.A.,
Guides, appellant had (zero percent) upper extremity impairment. He stated that the date of
maximum medical improvement would be November 21, 2008, the date of Dr. Krisiloff’s report.
By decision dated January 9, 2012, OWCP denied appellant’s claim for additional
schedule award finding that the medical evidence did not establish more than five percent
impairment of either upper extremity.
On January 13, 2012 appellant submitted a request for an oral hearing, which was held on
April 12, 2012. Counsel contends that Dr. Silverstein’s report was based on an incomplete
history as he acknowledged that he did not review all the reports, particularly the results of EMG
tests, which showed that appellant had carpal tunnel syndrome. He also pointed out that
Dr. Silverstein failed to refer to specific tables or charts in the A.M.A., Guides (6th ed.) when he
provided his impairment evaluation. Counsel further noted that Dr. Weiss submitted an updated
November 5, 2010 report which opined that appellant had 11 percent impairment rating for each
arm in accordance with the sixth edition of the A.M.A., Guides.
In a decision dated June 26, 2012, an OWCP hearing representative affirmed the
January 9, 2012 decision denying appellant’s request for increased schedule award. It
determined that OWCP properly found that the weight of the medical opinion rested with
Dr. Silverstein’s report who found that appellant had no upper extremity impairment.
LEGAL PRECEDENT
The schedule award provision of FECA8 and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The
method used in making such determination is a matter which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The
American Medical Association, Guides to the Evaluation of Permanent Impairment (sixth
edition 2009), has been adopted by OWCP as the appropriate standard for evaluating schedule
losses and the Board has concurred in such adoption.9 As of May 1, 2009, the sixth edition of
the A.M.A., Guides is used to calculate schedule awards.10
Impairment due to carpal tunnel syndrome is evaluated under the schedule found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.11 In
Table 15-23, grade modifiers levels (ranging from 0 to 4) are described for the categories test
8

5 U.S.C. §§ 8101-8193.

9

R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 143 (2000); see also 20 C.F.R. § 10.404.

10

FECA Bulletin No. 09-03 (issued March 15, 2009); see also Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
11

A.M.A., Guides 449 (6th ed. 2008).

5

findings, history and physical findings. The grade modifier levels are averaged to arrive at the
appropriate overall grade modifier level and to identify a default rating value. The default rating
value may be modified up or down by one percent based on functional scale, an assessment of
impact on daily living activities.12
If there is a disagreement between the physician making the examination for the United
States and the physician of an employee, the Secretary shall appoint a third physician (known as
a referee physician or impartial medical specialist) who shall make an examination.13 In cases
where OWCP has referred appellant to an impartial medical examiner to resolve a conflict in
medical evidence, the opinion of such specialist, if sufficiently well rationalized and based upon
a proper factual background, must be given special weight.14
When OWCP obtains an opinion from an impartial medical specialist for the purpose of
resolving a conflict in the medical evidence and the specialist’s opinion requires clarification or
elaboration, it must secure a supplemental report from the specialist to correct the defect of the
original report.15 However, when the impartial specialist is unable to clarify or elaborate on the
original report or if a supplemental report is also vague, speculative or lacking in rationale, it
must submit the case record and a detailed statement of accepted facts to a second impartial
medical specialist for the purpose of obtaining a rationalized medical opinion on the issue.16
ANALYSIS
OWCP accepted that appellant sustained work-related bilateral carpal tunnel syndrome as
a result of his employment as a materials handler, for which he underwent bilateral carpal tunnel
releases.17 Appellant also has an accepted cervical condition. In a November 9, 2005 decision,
OWCP granted schedule awards for five percent permanent impairment to each upper extremity.
The case was remanded for an impartial medical examination to resolve a conflict of medical
opinion between Dr. Weiss, appellant’s treating physician, and an OWCP medical adviser.
Appellant was referred to Dr. Baron and Dr. Krisiloff, as impartial medical specialists, both their
reports were found insufficient to resolve the conflict.
OWCP referred appellant for an impartial medical examination to Dr. Silverstein who
determined that appellant did have upper extremity impairment. In a decision dated June 26,
2012, an OWCP hearing representative denied an additional schedule award. The Board finds

12

Id. at 448-50.

13

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).
14

B.P., Docket No. 08-1457 (issued February 2, 2009); Gloria J. Godfrey, 52 ECAB 486 (2001).

15

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

16

R.C., 58 ECAB 238 (2006); Bernadine P. Taylor, 54 ECAB 342 (2003). See 5 U.S.C. § 8123(a).

17

The record also reflects that appellant sustained a left knee sprain and a cervical sprain in the performance of
duty and was diagnosed with degenerative cervical disc disease that was preexisting.

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that Dr. Silverstein’s report was insufficiently rationalized to resolve the conflict in medical
opinion.
In a November 16, 2011 report, Dr. Silverstein stated that the objective examination
findings did not support appellant’s subjective complaints of bilateral carpal tunnel syndrome
and found that he no longer had residuals from his employment-related cervical condition. He
explained that appellant’s manual motor testing revealed normal thenar strength and his sensory
examination revealed symmetrical light touch. Dr. Silverstein noted that the January 30, 2007
EMG studies were benign. He determined that according to Chapter 15 of the sixth edition of
the A.M.A., Guides and the diagnosis impairment method, appellant would be classified as class
0 with no objective findings of his upper extremity or whole person. Dr. Silverstein concluded
that appellant suffered zero percent upper extremity and whole person impairment.
The Board finds, however, Dr. Silverstein provided a detailed history and indepth review
of the medical file; however, he failed to properly explain why he concluded that appellant was
entitled to no additional impairment according to the sixth edition of the A.M.A., Guides. He
stated that appellant’s January 2007 EMG studies were benign. Dr. Silverstein, however, failed
to explain why he relied on a four-year-old EMG studies and did not obtain current neurological
testing before he provided an impairment rating. He also stated that he did not have the EMG
results dated December 27, 1999 to February 28, 2008 for review on the functional capacity
evaluations dated August 26, 2002 to March 14, 2007. The Board has held that medical reports
must be based on a complete and accurate factual and medical background and medical opinions
based on an incomplete or inaccurate history are of limited probative value.18 Accordingly, the
Board finds that Dr. Silverstein did not adequately support his rating of no (zero percent)
impairment to appellant’s arms.
Dr. Silverstein determined that according to Chapter 15 appellant was a class 0 for no
permanent impairment. He did not fully explain his application of the A.M.A., Guides to his
findings. Dr. Silverstein generally referred to Chapter 15 for determining appellant’s permanent
impairment, but did not refer to any specific tables or grade modifiers or otherwise explain how
his findings on examination corresponded to the appropriate tables to determine an award of
permanent impairment. As noted, impairment due to carpal tunnel syndrome is evaluated under
Table 15-23 for Entrapment/Compression Neuropathy Impairment and accompanying relevant
text.19 Dr. Silverstein did not address whether he referred to Table 15-23 for rating appellant’s
impairment or how his examination findings corresponded to the appropriate grade modifiers in
Table 15-23. To properly resolve a conflict in a schedule award claim, the impartial medical
specialist should provide a reasoned opinion as to a permanent impairment to a scheduled
member of the body in accordance with the A.M.A., Guides.20 The Board finds that
Dr. Silverstein’s report is insufficient to resolve the conflict in medical opinion.

18

J.R., Docket No. 12-1099 (issued November 7, 2012); Douglas M. McQuaid, 52 ECAB 382 (2001).

19

Supra note 22.

20

See Richard R. LeMay, 56 ECAB 341 (2005); Thomas J. Fragale, 55 ECAB 619 (2004).

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The case will be remanded to OWCP to obtain the diagnostic tests and request a
supplemental report from Dr. Silverstein.21 After such further development as may be necessary,
OWCP shall issue an appropriate decision on the issue of appellant’s permanent impairment.
Appellant’s counsel contends on appeal that Dr. Weiss’s November 5, 2010 impairment
rating should represent the weight of the medical evidence. Dr. Weiss was involved in the
original conflict in medical opinion evidence, which remains unresolved. Moreover, his
application of the sixth edition of the A.M.A., Guides and permanent impairment rating is of
limited probative value as it was premised on a 2003 physical examination.
CONCLUSION
The Board finds that the case is not in posture for decision as there remains an
outstanding conflict in medical evidence regarding the extent of appellant’s permanent
impairment.
ORDER
IT IS HEREBY ORDERED THAT the June 26, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: April 3, 2013
Washington, DC

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

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

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

21

Nancy Keenan, 56 ECAB 687 (2005).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.S., Appellant
and
DEPARTMENT OF THE TREASURY,
BUREAU OF THE PUBLIC DEBT,
Parkersburg WV, Employer
__________________________________________

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

Docket No. 16-1762
Issued: April 10, 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 September 1, 2016 appellant filed a timely appeal from an August 2, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish that he has greater
than eight percent bilateral upper extremity impairment, for which he previously received
schedule awards.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal after OWCP issued its August 2, 2016
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, the Board lacks jurisdiction to review this additional evidence. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
This case has previously been before the Board.3 Appellant, a 67-year-old former
maintenance worker/mail clerk, has an accepted occupational disease claim (Form CA-2) for
bilateral lateral epicondylitis and aggravation of bilateral localized primary hand osteoarthritis
(basal joint/thumb), which arose on or about June 25, 2009.4 On December 20, 2014 he filed a
claim for a schedule award (Form CA-7).
In a January 29, 2015 decision, OWCP denied appellant’s claim for a schedule award
because he had not submitted an impairment rating in accordance with OWCP’s prior
instructions.
On an appeal request form dated and postmarked February 17, 2015, appellant requested
a telephonic hearing with OWCP’s Branch of Hearings and Review. It was held on
September 8, 2015.
By decision dated November 17, 2015, OWCP’s hearing representative affirmed
OWCP’s January 29, 2015 decision. She noted that appellant’s treating physician, Dr. Stephen
Popper, an osteopath, was equivocal with respect to whether he had reached maximum medical
improvement (MMI). Whereas Dr. Popper had previously indicated that appellant reached MMI,
the hearing representative noted that his latest report, dated October 17, 2013, indicated that
appellant had not reached MMI. In light of the treating physician’s apparent equivocation, she
found that the record was devoid of medical evidence establishing that appellant’s condition had
reached a permanent and fixed state.
Appellant appealed to the Board on December 16, 2015.
In its April 4, 2016 decision, the Board found that the case was not in posture for decision
regarding entitlement to a schedule award. The Board determined that there was sufficient
medical evidence of record that appellant reached MMI in 2013, thereby warranting further
development regarding the issue of permanent impairment. Accordingly, the Board set aside the
hearing representative’s November 17, 2015 decision, and remanded the case to OWCP for
referral to a second opinion physician to address the extent of any bilateral upper extremity
permanent impairment under the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides) (2009). The facts and
circumstances opined in the Board’s April 4, 2016 decision are incorporated herein by reference.
In a May 24, 2016 report, Dr. James H. Rutherford, a Board-certified orthopedic surgeon
and OWCP-referral physician, reviewed appellant’s medical records, a statement of accepted
facts, and provided his findings on physical examination. Based on his evaluation, he found that
appellant did not have ratable permanent impairment due to the accepted condition of bilateral
3

Docket No. 16-0344 (issued April 4, 2016).

4

Appellant last worked for the employing establishment in March 2013. OWCP paid wage-loss compensation
for temporary total disability through November 15, 2014. Effective November 16, 2014, appellant elected to
receive a disability retirement annuity from the Office of Personnel Management.

2

lateral epicondylitis. However, Dr. Rutherford found that there was permanent impairment
based on appellant’s accepted condition of aggravation of bilateral hand osteoarthritis. He rated
appellant based on the range of motion (ROM) method because there was “no category for
arthritis of the hands” under the diagnosis-based impairment (DBI) method. Dr. Rutherford
provided ROM measurements for the various joints of the thumb interphalangeal,
metacarpophalangeal (MCP), and carpometacarpal and four fingers distal interphalangeal,
proximal interphalangeal and MCP of each hand.5 He first calculated the individual digit
impairments, then determined the corresponding percentage of impairment to the hand, and
ultimately converted the hand impairment to an upper extremity impairment utilizing Table 1512, A.M.A., Guides 421 (6th ed., 2009). With respect to appellant’s right thumb/finger(s) ROM
limitations, Dr. Rutherford found 31 percent permanent impairment of the right upper extremity.
Regarding the left upper extremity, he found 22 percent permanent impairment.
On June 13, 2016 Dr. Arthur S. Harris, a Board-certified orthopedic surgeon and district
medical adviser (DMA), reviewed the medical evidence of record and noted his disagreement
with Dr. Rutherford’s May 24, 2016 impairment rating. The DMA explained that he utilized the
preferred DBI method for calculating appellant’s permanent impairment. He rated appellant
under Table 15-2, Digit Regional Grid, A.M.A., Guides 392 (6th ed., 2009) based on a diagnosis
of degenerative joint disease. Although the default (grade C) rating for class 1 impairment was
six percent, the DMA assigned eight percent (grade E) digit impairment for each thumb and
finger, bilaterally. He indicated that the combined digit impairments of the thumb and four
fingers on each hand represented eight percent bilateral upper extremity permanent impairment.
By decision dated August 2, 2016, OWCP granted appellant a schedule award for eight
percent permanent impairment of each upper extremity. The bilateral upper extremity award,
totaling 16 percent, covered a 49.92-week period from May 24, 2016 through May 8, 2017.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.6 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.7 FECA, however, does not specify
the manner by which the percentage loss of a member, function, or organ shall be determined.
5

With respect to appellant’s right and left thumbs, Dr. Rutherford found 20 percent permanent digit impairment,
bilaterally pursuant to Table 15-30, Thumb Range of Motion, A.M.A., Guides 468 (6th ed., 2009). In determining
impairment of the individual fingers, he applied Table 15-31, Finger Range of Motion, A.M.A., Guides 470 (6th ed.,
2009). For the right and left index (2nd) fingers, Dr. Rutherford found 45 and 25 percent permanent digit
impairment, respectively. Regarding appellant’s middle (3rd) finger on each hand, he found 45 percent on the right
and 25 percent permanent digit impairment on the left. Lastly, the ring (4th) and little (5th) fingers on both hands had
41 percent and 25 percent permanent digit impairment on the right and left side, respectively.
6

See 20 C.F.R. §§ 1.1-1.4.

7

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).

3

5 U.S.C.

To ensure consistent results and equal justice under the law, good administrative practice
requires the use of uniform standards applicable to all claimants. Through its implementing
regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating
schedule losses.8
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).9 The Board has approved OWCP’s use of the A.M.A., Guides for
the purpose of determining the percentage loss of use of a member of the body for schedule
award purposes.10
ANALYSIS
The issue is whether appellant has met his burden of proof to establish that he has more
than eight percent permanent impairment of each upper extremity for which he previously
received schedule awards. The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.11
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.12 In T.H., the Board concluded that OWCP physicians are
at odds over the proper methodology for rating upper extremity impairment, having observed
attending physicians, evaluating physicians, second opinion physicians, impartial medical
examiners, and DMAs use both DBI and ROM methodologies interchangeably without any
consistent basis. Furthermore, the Board has observed that physicians interchangeably cite to
language in the first printing or the second printing when justifying use of either ROM or DBI
methodology. Because OWCP’s own physicians are inconsistent in the application of the

8

20 C.F.R. § 10.404; see also Ronald R. Kraynak, 53 ECAB 130 (2001).

9

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 (February 2013).
10

Isidoro Rivera, 12 ECAB 348 (1961).

11

T.H., Docket No. 14-0943 (issued November 25, 2016).

12

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

4

A.M.A., Guides, the Board finds that OWCP can no longer ensure consistent results and equal
justice under the law for all claimants.13
In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment. In order to ensure consistent results and equal justice under the law for
cases involving upper extremity impairment, the Board will set aside the August 2, 2016
decision. Following OWCP’s development of a consistent method for calculating permanent
impairment for upper extremities to be applied uniformly, and such other development as may be
deemed necessary, OWCP shall issue a de novo decision on appellant’s claim for an upper
extremity schedule award.
CONCLUSION
The Board finds this case not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the August 2, 2016 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: April 10, 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
13

Supra note 11.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New York, NY, Employer
__________________________________________

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

Docket No. 18-1036
Issued: December 31, 2018

Case Submitted on the Record

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

JURISDICTION
On April 23, 2018 appellant filed a timely appeal from a February 26, 2018 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 to
consider the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a left wrist condition
causally related to the accepted June 22, 2017 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the February 26, 2018 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.

FACTUAL HISTORY
On October 29, 2017 appellant, then a 53-year-old distribution associate, filed a traumatic
injury claim (Form CA-1) alleging that on June 22, 2017 she banged her left hand hard against the
middle, top part of a wooden ledge while in the performance of duty. She stopped work on June 22,
2017 and returned to work the next day.
In a June 30, 2017 report, Dr. Dave Leung, a Board-certified family practitioner, diagnosed
a wrist sprain and indicated that it was a work-related injury. He noted that x-rays of the left wrist
showed no acute fractures or dislocations.
In a November 14, 2017 report, Deborah Lardner, D.O., a family practitioner, diagnosed
wrist pain. She noted that x-rays of the left wrist showed no fractures.
A November 14, 2017 left wrist x-ray provided an impression of no acute bone
abnormality. It noted that there were osteoarthritic changes at the first carpometacarpal joint with
a dystrophic periarticular ossification, which could also be an old fracture.
By development letter dated January 17, 2018, OWCP advised appellant that when her
claim was received it appeared to be a minor injury that resulted in minimal or no lost time from
work and, since the employing establishment did not controvert continuation of pay or challenge
the case, a limited amount of medical expenses were administratively approved and paid. It noted
that it had reopened her claim because the medical bills had exceeded $1,500.00. OWCP informed
appellant of the type of factual and medical evidence necessary to establish her claim and afforded
her 30 days to submit the necessary evidence.
In response, OWCP received appellant’s February 1, 2018 supplemental statement wherein
she reiterated how she struck her wrist on June 22, 2017. It also received additional medical
evidence.
In a January 15, 2018 report, Dr. R.C. Krishna, a Board-certified neurologist, provided a
history of appellant striking her hand against a desk while working at the employing establishment.
Appellant did not go to the hospital as she assumed the symptoms would go away. A week later
she went to City MD and had x-rays. Appellant was also advised to follow up with an orthopedist
and neurologist if the symptoms persisted. At the time of evaluation, she presented with pain in
her left hand and wrist. Appellant also had complaints of weakness and numbness. She had no
prior history of injury. Dr. Krishna provided examination findings and diagnosed left hand/wrist
derangement. Based on appellant’s history and physical examination, she opined that “appellant’s
physical injuries were [a] competent provocative cause of the impairment and disability and were
causally related to the above-noted work-related accident.”
In a January 30, 2018 report, Dr. Lardner diagnosed left wrist pain. In a January 30, 2018
attending physician’s report (Form CA-20), she reported that appellant had hit her hand on a
wooden desk at work. Dr. Lardner diagnosed left wrist pain, which she opined was caused or
aggravated by the reported work activity as it had started acutely.

2

By decision dated February 26, 2018, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record was insufficient to establish that her left wrist condition was
causally related to the accepted June 22, 2017 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. Second, the employee must submit medical evidence to
establish that the employment incident caused a personal injury.6
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.7 The opinion of the physician must be based
on a complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.
This medical opinion must include an accurate history of the employee’s employment injury and
must explain how the condition is related to the injury. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested, and the medical rationale expressed in support of the physician’s opinion.8

3

Supra note 1.

4

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

5

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

6

B.W., Docket No.16-1012 (issued October 21, 2016); see also T.H., 59 ECAB 388 (2008).

7

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

8

James Mack, 43 ECAB 321 (1991).

3

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a left wrist
condition causally related to the accepted June 22, 2017 employment incident.9
Dr. Leung first treated appellant following the June 22, 2017 employment incident. In his
June 30, 2017 report, he provided a diagnosis of wrist sprain and indicated that it was a workrelated injury. Dr. Leung’s statement on causal relation is a conclusory statement and is therefore
of limited probative value.10 There is no discussion or description of the employment incident and
his statement of causal relationship is unsupported by adequate medical rationale explaining how
the employment incident actually caused the diagnosed conditions.11
The Board notes that, in her November 14, 2017 and January 30, 2018 reports, Dr. Lardner
failed to provide a firm medical diagnosis as she only diagnosed left wrist pain. The Board has
consistently held that pain is a symptom, not a compensable medical diagnosis.12
Dr. Krishna’s January 15, 2018 report is also insufficient to establish appellant’s claim.
She reported an accurate history of injury, noted that appellant had no prior history of injury,
provided examination findings, and diagnosed left hand/wrist derangement. Based on appellant’s
history and physical examination, Dr. Krishna opined that appellant’s employment incident was a
competent provocative cause of the impairment and disability. Without explaining how,
physiologically, the employment incident caused or contributed to the diagnosed conditions, her
opinion on causal relationship is insufficiently rationalized and of limited probative value.13
The Board also notes that the record reflects a November 14, 2017 left wrist x-ray report.
Diagnostic testing reports lack probative value as they do not provide an opinion regarding the
cause of the diagnosed conditions.14
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference of causal relation.15 An award of compensation may not
be based on surmise, conjecture, speculation, or on the employee’s own belief of causal
relationship.16 Appellant’s honest belief that the June 22, 2017 employment incident caused an

9

See Robert Broome, 55 ECAB 339 (2004).

10

See B.W., supra note 6.

11

K.W., Docket No. 10-0098 (issued September 10, 2010).

12

C.F., Docket No. 08-1102 (issued October 10, 2008).

13
See L.M., Docket No. 14-0973 (issued August 25, 2014); R.G., Docket No. 14-0113 (issued April 25, 2014);
K.M., Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-0548 (issued November 16, 2012).
14

S.H., Docket No. 17-1447 (issued January 11, 2018).

15

Daniel O. Vasquez, 57 ECAB 559 (2006).

16

D.D., 57 ECAB 734 (2006).

4

injury, however, sincerely held, does not constitute medical evidence sufficient to establish causal
relationship.17
On appeal appellant asserts that it is not her fault that the physicians did not “word things
right.” As noted, it is appellant’s burden of proof to submit rationalized medical evidence
establishing causal relationship between the accepted June 22, 2017 employment incident and her
left wrist condition. She has not submitted the requisite medical evidence and, thus, has not met
her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a left wrist
condition causally related to the accepted June 22, 2017 employment incident.
ORDER
IT IS HEREBY ORDERED THAT that the February 26, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 31, 2018
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
17

H.H., Docket No. 16-0897 (issued September 21, 2016).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Beckley, WV, Employer
__________________________________________

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

Docket No. 16-0326
Issued: September 13, 2016

Case Submitted on the Record

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

JURISDICTION
On December 9, 2015 appellant, through counsel, filed a timely appeal from a June 15,
2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than one year has elapsed since the last merit decision dated July 18, 2006, and the date of this
appeal,2 pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.
1

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

For final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to file an
appeal with the Board. See 20 C.F.R. § 501.3(d)(2) (2008).
3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.
On appeal counsel contends that OWCP’s decision was contrary to fact and law.
FACTUAL HISTORY
On June 30, 2005 appellant, then a 52-year-old patient records assistant, filed an
occupational disease claim (Form CA 2) alleging that she suffered an emotional condition (stress
followed by bouts of depression, insomnia, and paranoia) causally related to factors of her
federal employment. The employing establishment controverted appellant’s claim.
In a decision dated October 14, 2005, OWCP denied appellant’s claim, finding that the
evidence was insufficient to establish that the events occurred as alleged and that no medical
evidence provided a diagnosis which could be connected to the claimed events.
On November 10, 2005 appellant requested a hearing before an OWCP hearing
representative.
In a decision dated July 18, 2006, an OWCP hearing representative found that neither
appellant’s allegations with regard to the development of her workers’ compensation claim nor
her activities as a union representative constituted compensable factors of employment. She
further determined that appellant did not establish that she experienced discrimination alleged in
her Equal Employment Opportunity (EEO) complaint, which included allegations that she was
denied an opportunity to compete for positions and was denied a position or transfer. The
hearing representative found that appellant had established compensable factors of employment
as the evidence supported that she received inadequate training in the oncology department and
that she was provided insufficient supplies to perform her job. However, she determined that the
medical evidence did not establish that appellant sustained an emotional condition causally
related to these accepted factors of employment. Accordingly, the hearing representative
affirmed the denial of appellant’s claim.
By letter dated March 30, 2015, received by OWCP on May 5, 2015, appellant requested
reconsideration. She alleged that OWCP chose to brush aside her claim because it was
complicated. Appellant argued that she did her job until she could no longer safely do so. She
noted instances of alleged discrimination and harassment, and further contended that she suffered
a reprisal due to her EEO claim. Appellant alleged that she was not allowed to compete for
certain jobs and was overworked. She discussed her medical treatment. Appellant submitted
copies of receipts for her medication and earnings and leave statements from the employing
establishment.
Appellant also submitted a June 10, 2008 form response wherein Dr. John Hutton, a
Board-certified psychiatrist, noted appellant’s history of severe workplace stress, harassment,
conflict, sense of abandonment, humiliation, and degradation. Dr. Hutton noted objective
physical findings of anxiety, fear, intensive thoughts, nightmares, panic, obsessiveness, crying,

2

and depression. He diagnosed post-traumatic stress disorder (PTSD) and major depressive
disorder single episode severe with psychotic symptoms.
Appellant also submitted copies of letters regarding her lawsuit against the employing
establishment in the United States District Court of the Southern District of West Virginia.
These documents included a copy of the release that she signed, noting that a settlement had
been reached in the amount of $60,000.00. The release also contained a statement that the
employing establishment was sorry that the last several years of appellant’s employment had
been so stressful. The release specifically indicated that it was not intended to cover any claim
with OWCP. It also revealed that it was understood that the settlement did not constitute an
admission of liability, but rather to the contrary liability for the claim was strictly denied.
Appellant also submitted a portion (8 pages of 23) of a March 28, 2007 investigative report
conducted by the employing establishment with regard to her EEO complaint. This partial
document set forth appellant’s allegations and a few of the investigator’s findings.
By decision dated June 15, 2015, OWCP denied appellant’s request for reconsideration as
it was untimely filed and failed to demonstrate clear evidence of error.4
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
claimant must file his application for review within one year of the date of that decision.5 The
Board has found that the imposition of the one-year limitation does not constitute an abuse of the
discretionary authority granted OWCP under section 8128(a) of FECA.6 The one-year period
begins on the date of the original decision. However, a right to reconsideration within one year
accompanies any subsequent merit decision on the issues. This includes any hearing or review
of the written record decision, any denial of modification following reconsideration, any merit
decision by the Board, and any merit decision following action by the Board.7
OWCP, however, may not deny an application for review solely because the application
was untimely filed. When an application for review is untimely filed, it must nevertheless
undertake a limited review to determine whether the application demonstrates clear evidence of
error.8 OWCP regulations and procedures provide that it will reopen a claimant’s case for merit

4

In the June 15, 2015 decision, OWCP stated that appellant requested reconsideration of a March 30, 2015
decision. The June 15, 2015 decision later states that the request for reconsideration was not timely filed. The
Board finds that there was no decision issued in this case on March 30, 2015; the last decision in the current case
was issued by OWCP on July 19, 2006. The Board also notes that there was no decision issued in appellant’s other
case, Docket No. xxxxxx187, on that date. It appears that OWCP’s reference to a March 30, 2015 decision was an
error, and that this date may refer to the date of appellant’s reconsideration request.
5

20 C.F.R. § 10.607(a).

6

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

7

D.G., 59 ECAB 455 (2008); see also C.J., Docket No. 12-1570 (issued January 16, 2013).

8

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

3

review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the
claimant’s application for review shows clear evidence of error on the part of OWCP.9
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.10 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error.11 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.12 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.13 This entails a limited review by OWCP 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 OWCP.14 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of OWCP’s decision.15
ANALYSIS
The Board finds that OWCP properly declined to reopen appellant’s claim for
reconsideration of the merits as the request for reconsideration was untimely filed and did not
demonstrate clear evidence of error.
As previously stated, the Board does not have jurisdiction over the last merit decision
issued on July 18, 2006. The only decision over which the Board has jurisdiction is the June 15,
2015 nonmerit decision wherein OWCP denied reconsideration as appellant’s request was
untimely filed and failed to demonstrate clear evidence of error. As more than one year elapsed
between the last merit decision issued in this case on July 18, 2006 and appellant’s May 5, 2015
request for reconsideration, OWCP properly found that appellant’s request for reconsideration
was untimely filed.
The Board further finds that OWCP properly denied appellant’s untimely request for
reconsideration as she failed to demonstrate clear evidence of error. OWCP initially denied
appellant’s claim for an emotional condition. It determined that the only compensable factors of
employment that appellant had established were improper training for her assignment in
9

20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5
(October 2011).
10

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

11

See Leona N. Travis, 43 ECAB 227, 240 (1991).

12

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

13

See supra note 11.

14

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

15

Leon D. Faidley, Jr., supra note 6.

4

oncology and inadequate office supplies for her job. OWCP specifically rejected appellant’s
assertions that compensable factors included harassment and discrimination, allegations that
were pursued by appellant in her EEO claim against the employing establishment. It noted that
appellant had not submitted documents supporting her allegations. Appellant has now submitted
the settlement agreement and other papers with regard to her claim before the United States
District Court for the Southern District of West Virginia. These documents do not establish clear
evidence of error. The settlement agreement specifically noted that it was not intended to cover
any claim appellant may have against OWCP. The agreement indicated that the settlement did
not constitute an admission of liability, and that liability for the claim was specifically denied by
the employing establishment. The incomplete investigative report also does not establish clear
evidence of error as only a small portion of the report was submitted into the record, and this
portion merely sets forth appellant’s allegations. Appellant’s leave statements and medication
receipts do not demonstrate clear evidence of error as they do not address compensable factors of
employment nor are they medical opinions addressing causal relationship.
OWCP did determine that appellant experienced specific compensable factors of
employment, i.e., she was improperly trained for her work in the oncology department and she
was given insufficient office supplies. However, it denied her claim as appellant failed to submit
medical evidence finding that her diagnosed emotional conditions were caused or aggravated by
these specific factors of her federal employment. On reconsideration, appellant submitted a
June 10, 2008 form response to queries wherein Dr. Hutton indicated that appellant experienced
stress, harassment, conflict, sense of abandonment, humiliation and degradation at her
employment. Dr. Hutton then noted that appellant suffered from PTSD and a major depressive
disorder with psychotic symptoms. However, he never explained how the specific accepted
employment factors caused appellant’s emotional condition, and therefore his report also does
not demonstrate clear evidence of error.
The Board notes that clear evidence of error is intended to represent a difficult standard.
Even the submission of a detailed well-rationalized report which, if submitted before the denial
was issued, would have created a conflict in medical opinion requiring further development, is
not clear evidence of error.16
Accordingly, the Board finds that OWCP properly denied appellant’s untimely
reconsideration request.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.

16

B.W., Docket No. 15-0892 (issued August 26, 2015).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 15, 2015 is affirmed.
Issued: September 13, 2016
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Roanoke, VA, Employer
__________________________________________

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

Docket No. 20-0128
Issued: July 28, 2021

Case Submitted on the Record

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

JURISDICTION
On October 21, 2019 appellant filed a timely appeal from a October 2, 2019 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 to
consider the merits of this case.2
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $39,539.87, for which he was without fault, because he concurrently received FECA
benefits and Social Security Administration (SSA) age-related retirement benefits without an
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the October 2, 2019 decision, OWCP received additional evidence. However,
the Boards 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.

appropriate offset for the period June 1, 2011 through May 25, 2019; (2) whether OWCP properly
denied waiver of recovery of the overpayment; and (3) whether OWCP properly required recovery
of the overpayment by deducting $200.00 from appellant’s continuing compensation payments
every 28 days.
FACTUAL HISTORY
This case has previously been before the Board on another issue.3 The facts and
circumstances of the case as set forth in the Board’s prior decision and order are incorporated
herein by reference. The facts relevant to the present appeal are as follows.
On March 17, 1997 appellant, then a 51-year-old carrier filed an occupational disease
claim (Form CA-2) alleging that he developed a back condition causally related to delivering
mail, driving, sitting, reaching, turning and twisting due to factors of his federal employment. He
stated that he first became aware of his back condition on August 23, 1994 and noted that he first
realized his condition was caused or aggravated by his federal employment on March 5, 1997.
OWCP accepted appellant’s claim for lumbar strain and later expanded the acceptance of the claim
to include exacerbation of lumbosacral degenerative disc disease. Appellant stopped work on
March 7, 1997 and resumed on March 25, 1997. On March 31, 1997 he resigned from the
employing establishment and went on disability retirement. In an election of benefits form dated
January 28, 2003, appellant elected to receive FECA benefits.
4

On April 17, 2019 SSA forwarded Federal Employees Retirement System (FERS)/SSA
dual benefits calculation form to OWCP. SSA advised that no offset of appellant’s compensation
benefits were applicable from September 1997 to May 2011, because he was receiving disability
benefits. SSA indicated that effective June 2011 appellant reached retirement age and was eligible
for SSA retirement benefits. Beginning June 2011, the SSA rate with FERS was $1,301.30 and
without FERS was $919.10. Beginning December 2011, the SSA rate with FERS was $1,348.10
and without FERS was $952.10. Beginning December 2012, the SSA rate with FERS was
$1,371.00 and without FERS was $968.20. Beginning December 2013, the SSA rate with FERS
was $1,391.50 and without FERS was $982.70. Beginning December 2014, the SSA rate with
FERS was $1,415.10 and without FERS was $999.40. Beginning December 2015, the SSA rate
with FERS was $1,415.10 and without FERS was $999.40. Beginning December 2016, the SSA
rate with FERS was $1,419.30 and without FERS was $1,002.30. Beginning December 2017, the
SSA rate with FERS was $1,447.60 and without FERS was $1,022.30. Beginning December 2018,
the SSA rate with FERS was $1,488.10 and without FERS was $1,050.90.
In a June 18, 2019 letter, OWCP indicated that it determined that appellant had been
concurrently receiving both FECA and FERS/SSA benefits, resulting in a prohibited dual benefit.
It determined that his monthly SSA age-related retirement benefit was $3,611.00. The monthly

3

Docket No. 01-545 (issued June 25, 2002).

4
The record indicates that the employing establishment informed OWCP on July 8, 1997 that, appellant changed
the nature of his claim from an occupational disease claim to a traumatic injury claim.

2

offset was adjusted to a 28-day payment cycle of $403.57 and resulted in a new net compensation
payment of $2,894.89.
A June 18, 2019 FERS offset calculation worksheet noted each alleged period of
overpayment and provided calculations, which resulted in a total overpayment of $39,539.87
during the period June 1, 2011 through May 25, 2019.
In a preliminary overpayment determination dated July 15, 2019, OWCP informed
appellant that he had received an overpayment of compensation in the amount of $39,539.87
because the SSA/FERS offset was not applied to payments for the period June 1, 2011 to
May 25, 2019. It determined that appellant was without fault in the creation of the overpayment
because he received benefits from SSA as part of an annuity under FERS concurrently with FECA
benefits and due to the complexity in the benefits administration, he could not have reasonably
known that an improper payment occurred. OWCP requested that he submit a completed
overpayment recovery questionnaire (Form OWCP-20) and submit supporting financial
documentation. Additionally, it provided an overpayment action request form and notified
appellant that, within 30 days of the date of the letter, he could request a telephone conference, a
final decision based on the written evidence, or a prerecoupment hearing.
In a July 22, 2019 overpayment action request form, appellant requested that OWCP make
a decision based on the written evidence. He noted that to repay this debt would cause a severe
financial hardship and loss for his family. In an attached Form OWCP-20, signed by appellant on
July 22, 2019, he reported SSA income of $1,874.00 and FECA benefits of $2,894.89. Appellant
reported expenses totaled $3,415.32. He listed expenses as: $854.00 for mortgage; $648.28 for a
car; $247.48 for a loan; $130.00 for A&P; $73.00 for furniture; $691.00 for revolving loans/credit
cards; $50.00 for water; $56.56 for car insurance; $200.00 for telephone bill; and $538.00 to
“Wanda Month.” Appellant attached financial information including bank statements, utility bills,
and credit card bills.
By decision dated October 2, 2019, OWCP finalized the July 15, 2019 preliminary
determination that appellant had received an overpayment of compensation in the amount of
$39,539.87 for the period June 1, 2011 to May 25, 2019 because it failed to offset his compensation
payments by the portion of his SSA age-related benefits that were attributable to his federal service.
It further found that he was not at fault in the creation of the overpayment, but denied waiver of
recovery of the overpayment because the evidence of record failed to establish that recovery of an
overpayment would defeat the purpose of FECA or would be against equity and good conscience.
OWCP found that it would recover the overpayment by deducting $200.00 every 28 days from
appellant’s continuing compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty.5 Section 8116 limits the right of an employee to receive
5

5 U.S.C. § 8102(a).

3

compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States.6
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related benefits that are attributable to the
employee’s federal service.7 FECA Bulletin No. 97-09 states that FECA benefits have to be
adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned as a
federal employee is part of the FERS retirement package, and the receipt of FECA benefits and
federal retirement concurrently is a prohibited dual benefit.8
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $39,539.87 for the period June 1, 2011 through May 25, 2019
because he concurrently received FECA benefits and SSA age-related retirement benefits without
appropriate offset.
The record supports that appellant received FECA wage-loss compensation for total
disability beginning in September 1997 and that he received SSA age-related retirement benefits
beginning June 1, 2011. As noted, a claimant cannot receive concurrent FECA compensation for
wage loss and SSA retirement benefits attributable to federal service for the same period. 9 The
information provided by SSA accurately indicated that appellant had received SSA age-related
retirement benefits that were attributable to his federal service from June 1, 2011 to May 25, 2019.
Thus, the record establishes that he received an overpayment of FECA wage-loss compensation.10
To determine the amount of the overpayment, the portion of the SSA benefits that were
attributable to federal service must be calculated. OWCP received documentation from SSA with
respect to the specific amount of SSA age-related retirement benefits that were attributable to
federal service. The Board also finds that OWCP properly determined the amount of the
overpayment. The Board properly explained that no deduction for SSA age-related retirement
benefits had been recorded for the period appellant received FECA wage-loss benefits, June 1,
2011 through May 25, 2019. Therefore, an overpayment of compensation was created during this
period. OWCP provided its calculations of the amount that it should have offset for the relevant
period based on the SSA worksheet.

6

Id. at § 8116.

7

20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018).

8

FECA Bulletin No. 97-09 (February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).

9

20 C.F.R. § 10.421(d); S.M., Docket No. 17-1802 (issued August 20, 2018); supra note 6; L.D., Docket No. 190606 (issued November 21, 2019); A.C., Docket No. 18-1550 (issued February 21, 2019).
10

Id.

4

The Board has reviewed OWCP’s calculations and finds that it properly determined that
appellant received prohibited dual benefits totaling $39,539.87, thus creating an overpayment of
compensation in that amount, for the period June 1, 2011 through May 25, 2019.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.11
Recovery of an overpayment will defeat the purpose of FECA when such recovery would
cause hardship to a currently or formerly entitled beneficiary because the beneficiary from whom
OWCP seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP.12 An individual is deemed to need
substantially all of his or her current income to meet current ordinary and necessary living expenses
if monthly income does not exceed monthly expenses by more than $50.00.13 Also, assets must
not exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a
spouse or dependent plus $1,200.00 for each additional dependent.14 An individual’s liquid assets
include, but are not limited to cash, the value of stocks, bonds, saving accounts, mutual funds, and
certificate of deposits.15
Recovery of an overpayment is considered to be against equity and good conscience when
an individual who received an overpayment would experience severe financial hardship in
attempting to repay the debt or when an individual, in reliance on such payment or on notice that
such payments would be made, gives up a valuable right or changes his or her position for the
worse.16
OWCP regulations provide that the individual who received the overpayment is responsible
for providing information about income, expenses, and assets as specified by OWCP. This
information is needed to determine whether or not recovery of an overpayment would defeat the

11

5 U.S.C. § 8129.

12
20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4(a)(2) (September 2018).
13
Id. at Chapter 6.400.4(a)(3); N.J., Docket No. 19-1170 (issued January 10, 2020); M.A., Docket No. 18-1666
(issued April 26, 2019).
14

See supra note 12 at Chapter 6.400.4(a)(2) (September 2018).

15

Id. at Chapter 6.400.4(b)(3).

16

20 C.F.R. § 10.437(a)(b).

5

purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary.17
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience. 18 Evidence in the
case record shows that appellant has income totaling $4,768.89. Appellant listed expenses as:
$854.00 for mortgage; $648.28 for a car; $247.48 for loan; $130.00 for A&P; $73.00 for furniture;
$691.00 for revolving loans/credit cards; $50.00 for water; $56.56 for car insurance; $200.00 for
telephone bill; and $538.00 to “Wanda Month.”
Based upon the information provided on the overpayment questionnaire and evidence
received after the hearing, appellant’s household income was $4,768.89 with expenses totaling
$3,415.32. As his monthly income exceeds his monthly expenses by $1,353.57, appellant does
not need substantially all of his monthly income to meet current and ordinary living expenses.
Appellant has not established that recovery of the overpayment would be against equity
and good conscience. He has not submitted evidence that he would experience severe financial
hardship in attempting to repay the debt, or that in reliance on the overpayment he gave up a
valuable right or changed his position for the worse.19 Therefore, OWCP properly found that
recovery of the overpayment would not defeat the purpose of FECA or be against equity and good
conscience.
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP’s regulations provides in pertinent part: When an overpayment
has been made to an individual who is entitled to further payments, the individual shall refund to
OWCP the amount of the overpayment as soon as the error is discovered or his or her attention is
called to the same. If no refund is made, OWCP shall decrease later payments of compensation,
taking into account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize any hardship.20

17

Id. at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

18

5 U.S.C. § 8129.

19

L.D., Docket No. 18-1317 (issued April 17, 2019); William J. Murphy, 41 ECAB 569, 571-72 (1989).

20
20 C.F.R. § 10.441(a); A.S., Docket No. 19-0171 (issued June 12, 2019); Donald R. Schueler, 39 ECAB 1056,
1062 (1988).

6

ANALYSIS -- ISSUE 3
The Board finds that OWCP properly requested recovery of the overpayment by deducting
$200.00 every 28 days from appellant’s continuing compensation payments.
In determining that appellant could repay the overpayment through $200.00 deductions
from continuing compensation payments, OWCP took into account his financial information as
well as factors set forth in 20 C.F.R. § 10.441 and found that this method of recovery would
minimize any resulting hardship, not necessarily eliminate it, while at the same time liquidating
the debt in a reasonably prompt fashion.21 The Board finds that OWCP gave due regard to the
financial information provided by him and noted that appellant was not deemed to need
substantially all of his monthly income to meet current and ordinary living expenses as monthly
income exceeds monthly expenses by $1,353.57. OWCP further applied its procedures, which
require an appropriate payment amount should be deducted in order to recover the overpayment
within three years. Therefore, the Board finds that OWCP properly required recovery of the
overpayment by deducting $200.00 from appellant’s compensation payments every 28 days.
CONCLUSION
The Board finds that OWCP properly found that appellant received an overpayment of
compensation in the amount of $39,539.87, for which he was without fault, because he
concurrently received FECA wage-loss compensation and SSA age-related retirement benefits for
the period June 1, 2011 through May 25, 2019. The Board further finds that OWCP properly
denied waiver of recovery of the overpayment and properly required recovery of the overpayment
by deducting $200.00 every 28 days from his continuing compensation payments.

21

See L.F., Docket No. 15-0489 (issued May 11, 2015) (where the Board affirmed an OWCP hearing
representative’s decision that a claimant was not entitled to waiver of recovery of an overpayment because he and his
spouse had over $17,000.00 in their savings account, and the hearing representative determined that his assets
exceeded the specified resource base).

7

ORDER
IT IS HEREBY ORDERED THAT the October 2, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 28, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8