United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, SOCIAL SECURITY
ADMINISTRATION, Chicago, IL, Employer
__________________________________________

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

Docket No. 14-1441
Issued: January 13, 2015

Case Submitted on the Record

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

JURISDICTION
On June 12, 2014 appellant filed a timely appeal from a May 20, 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.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $7,098.21 for the period May 23 through June 29, 2013; and (2) whether OWCP erred
in not considering waiver of recovery of the overpayment.
On appeal, appellant contends that an OWCP letter did not explain why her request for
waiver of recovery of the overpayment was denied. She noted that the letter also stated that she
was found to be without fault in creation of the overpayment.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 21, 2007 appellant then, a 47-year-old supervisory information technology
(IT) specialist, filed an occupational disease claim (Form CA-2) under File No. xxxxxxx698
alleging that on March 10, 2007 she first realized that her carpal tunnel syndrome of both wrists
was caused by her repetitive work duties. On April 27, 2007 OWCP accepted the claim for
bilateral carpal tunnel syndrome. Appellant underwent right carpal tunnel release on April 5,
2007 and left carpal tunnel release on September 20, 2007.
On July 27, 2007 appellant filed a Form CA-2 under File No. xxxxxx269. OWCP
accepted the claim for deep cervical nerve root impingement. It paid appellant total disability
compensation benefits. The claims under File Nos. xxxxxx698 and xxxxxx269 were combined
into Master File No. xxxxxx698.
In an April 2, 2012 medical report, Dr. Suneela Harsoor, an attending Board-certified
anesthesiologist with a subspecialty in pain medicine, diagnosed cervical radiculopathy and
carpal tunnel syndrome. She addressed her treatment plan.
By letter dated July 25, 2012, QTC Medical Services, OWCP’s medical appointment
scheduler, notified appellant that she was scheduled for an August 30, 2012 appointment for a
second opinion with Dr. James P. Elmes, a Board-certified orthopedic surgeon. In a
September 4, 2012 report, Dr. Elmes diagnosed mild C5-C6 foraminal stenosis, C6-C7 disc
protrusion and C3-C4 and C4-C5 disc bulge, mild cervical degenerative disc disease and
exogenous obesity. He advised that appellant was five years, four months post release of right
carpal tunnel syndrome and five years postsurgical release of left carpal tunnel syndrome with
residual pain. Dr. Elmes stated that there was no evidence to establish a causal relationship
between appellant’s bilateral carpal tunnel syndrome, cervical disc impingement, and her work
factors. There were insufficient objective findings to support her subjective complaints of
bilateral hand and wrist pain and neck pain. Dr. Elmes concluded that appellant could perform
her usual job with no restrictions.
On October 19, 2012 OWCP determined that there was a conflict in medical opinion
between Dr. Harsoor and Dr. Elmes regarding causal relationship and appellant’s continuing
residuals and work capacity. It referred appellant to Dr. G. Klaud Miller, a Board-certified
orthopedic surgeon, for an impartial medical examination. In a December 5, 2012 report,
Dr. Miller found that appellant’s carpal tunnel syndrome and cervical radiculopathy were not
causally related to her repetitive work duties. He found evidence of symptom magnification.
Dr. Miller agreed with Dr. Elmes’ finding that there was no objective reason why appellant could
not return to full-duty work as an IT specialist.
In a notice dated December 13, 2012, OWCP proposed to terminate appellant’s wage-loss
compensation and medical benefits. It found that the weight of the medical evidence rested with
the opinion of Dr. Miller who found that appellant had no residuals or disability causally related
to her accepted employment-related conditions. Appellant was given 30 days to submit further
evidence.

2

By letter dated January 4, 2013, appellant disputed Dr. Miller’s opinion. She requested
an opportunity to submit an opinion from her attending physician to rebut his opinion.
By letter dated January 23, 2013, OWCP requested clarification from Dr. Miller as to
whether appellant had any residuals of her employment-related bilateral carpal tunnel syndrome
and cervical nerve root impingement. In a February 11, 2013 report, Dr. Miller stated that
appellant had no objective evidence of residuals of any physiologic process. Her sensory
examination was completely normal. The ranges of motion of the neck and arms were
completely normal. There was no evidence of significant tenderness in anything that could be
related to either the cervical spine or carpal tunnel syndrome. Dr. Miller stated that appellant had
some weakness bilaterally, but she did not fulfill validity criteria on Jamar dynamometer testing.
Therefore, he stated that this weakness was nonphysiologic and did not support an objective
residual abnormality. Dr. Miller opined there were no residuals that could be related to the
accepted conditions. He reiterated that there was no objective evidence of any residuals of either
accepted condition.
In a notice dated April 1, 2013, OWCP proposed to terminate appellant’s wage-loss
compensation and medical benefits based on Dr. Miller’s opinion that she had no residuals or
disability causally related to the accepted employment injuries. Appellant was given 30 days to
submit further evidence.
By letter dated April 26, 2013, appellant again disputed Dr. Miller’s opinion. She
requested an opportunity to submit an opinion from her attending physician regarding her
continuing residuals.
In reports dated April 12 and 26, 2013, Dr. Blair A. Rhode, a Board-certified orthopedic
surgeon, advised that appellant had bilateral carpal tunnel syndrome and wrist pain, and reflex
sympathetic disorder of the upper limb. He further stated that she was totally disabled for work.
In a May 23, 2013 decision, OWCP finalized the termination of appellant’s compensation
benefits, effective that day. It found that the medical evidence submitted was insufficient to
outweigh the weight accorded to Dr. Miller’s opinion.
On May 28, 2013 appellant, through her attorney, requested a telephone hearing with an
OWCP hearing representative.
In reports dated May 31, July 12 and October 3, 2013, Dr. Rhode reiterated his prior
diagnoses and opinion regarding appellant’s disability for work.
On July 5, 2013 OWCP advised appellant that her compensation had not been terminated
in accordance with the May 23, 2013 decision.
In a December 23, 2013 decision, an OWCP hearing representative affirmed the May 23,
2013 termination decision.
On January 31, 2014 OWCP issued a preliminary determination that appellant received a
$7,098.21 overpayment of compensation for the period May 23 through June 29, 2013 because
she received wage-loss compensation after her benefits were terminated. Appellant was found at
3

fault in the creation of the overpayment because she accepted payments that she knew or should
have known to be incorrect. She was provided an overpayment action request form and an
overpayment questionnaire. An automated computer payment system (ACPS) form, bearing a
run date of July 5, 2013, reflected disability payments for the period May 23 through
June 29, 2013. Appellant received a check, dated June 1, 2013, in the amount of $1,867.95 for
the period May 23 through June 1, 2013. She also received a check dated June 29, 2013 in the
amount of $5,230.26 for the period June 2 through 29, 2013, for a total net amount of $7,098.21.
On February 15, 2014 appellant requested a telephone conference on the issues of fault
and possible waiver of the overpayment. She contended that any overpayment occurred through
no fault of her own. Appellant believed that she was entitled to the funds paid to her and she
sought waiver of recovery of the overpayment. She submitted an overpayment questionnaire.
During the April 25, 2014 telephone conference, an OWCP claims examiner questioned
some of the expenses listed on the overpayment questionnaire.
In a May 20, 2014 decision, OWCP finalized its determination that appellant had
received an overpayment in the amount of $7,098.21 and that she was “without fault in its
creation, because they were not aware of compensation to which they were not entitled.” It
directed repayment of the overpayment in full.
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 duty.2 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 OWCP, by decreasing later payments to which the individual is
entitled.3 Section 10.500 of OWCP regulations provide that compensation for wage loss 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.4
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $7,098.21 for the period May 23 through June 29, 2013. The
record reflects that OWCP terminated her wage-loss compensation benefits effective May 23,
2013; however, she continued to receive monetary benefits through June 29, 2013.
The July 5, 2013 ACPS form reflects that checks totaling $7,098.21 for wage-loss
compensation were sent to appellant on June 1 and 29, 2013 for the period May 23 through
June 29, 2013. Appellant’s wage-loss compensation was terminated as of May 23, 2013. On
2

5 U.S.C. § 8102(a).

3

Id. at § 8129(a).

4

20 C.F.R. § 10.500.

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appeal, appellant did not contest the fact or amount of the overpayment. The Board finds that an
overpayment of $7,098.21 was created in this case.
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.5 Section 10.438 of 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
on an overpayment would defeat the purpose of FECA or be against equity and good
conscience.6 Failure to submit the requested information within 30 days of the request shall
result in denial of waiver.7
OWCP procedures provide that 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 $50.00.8
ANALYSIS -- ISSUE 2
The Board finds that the case is not in posture for decision regarding waiver. By its
preliminary overpayment finding on January 31, 2014, OWCP found appellant at fault in
creating the $7,098.21 overpayment because she knew or should have known that OWCP had
paid compensation incorrectly, yet when issuing the final overpayment decision on May 20,
2014, OWCP stated that it had determined that the preliminary finding was correct, but found
appellant without fault.
As OWCP found appellant without fault in the creation of the overpayment in
compensation, waiver must be considered, and repayment is still required unless it is determined
that adjustment or recovery of the overpayment would defeat the purpose of FECA or be against

5

5 U.S.C. § 8129.

6

Recovery of an overpayment will defeat the purpose of FECA if such recovery would cause hardship to a
currently or formerly entitled beneficiary because: (a) the beneficiary from whom OWCP seeks recovery needs
substantially all of his or her current income (including compensation benefits) to meet current or ordinary and
necessary living expenses; and (b) the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data furnished by the Bureau of Labor Statistics. 20 C.F.R. § 10.436. 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 attempting to repay the debt; and when an individual, in reliance on such
payments or on notice that such payments would be made, gives up a valuable right or changes his or her position
for the worse. Id. at § 10.437.
7

20 C.F.R. § 10.438.

8

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6.a(1)(b) (June 2009).

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equity and good conscience.9 In this case, OWCP did not consider waiver in its final decision.
Appellant submitted an overpayment action request in which she requested waiver. She also
submitted an overpayment questionnaire and financial information. The case must therefore be
remanded to OWCP to properly consider waiver. On remand, OWCP should obtain updated
financial information from appellant to be followed by a decision on whether she is eligible for
waiver.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $7,098.21 for the period May 23 through June 29, 2013 and that OWCP erred in not
determining whether appellant was entitled to waiver of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the May 20, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part and the case is
remanded to OWCP for proceedings consistent with this decision of the Board.
Issued: January 13, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9

20 C.F.R. §§ 10.436, 10.437.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
U.S. POSTAL SERVICE, SEVEN OAKS
STATION, Detroit, MI, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 10-2237
Issued: June 28, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On September 2, 2010 appellant filed an application for review of a decision of the Office
of Workers’ Compensation Programs (OWCP) dated August 17, 2010 that denied her claim.
The appeal was docketed as No. 10-2237.
The record indicates that on March 4, 2008 appellant filed a traumatic injury claim,
alleging that she sustained a right shoulder and elbow injury when she slipped and fell on ice on
February 25, 2008. By decision dated May 14, 2008, OWCP denied the claim, and on June 4,
2008 appellant requested a hearing. In correspondence dated June 11, 2009 appellant’s attorney
noted that he had not received a response to her hearing request. The attorney attached a copy of
a September 17, 2008 correspondence to the Branch of Hearings and Review of OWCP
requesting that a telephone hearing be scheduled.1 By letter dated July 10, 2009, OWCP advised
the attorney that the appeal would be reviewed and he would be notified of the outcome. On
July 16, 2009 appellant, through his attorney, requested reconsideration with OWCP. On
August 14, 2009 the attorney asked that OWCP respond to his June 11, 2009 correspondence
regarding appellant’s appeal. On March 10, 2010, appellant’s attorney asked that OWCP

1

A copy of the September 17, 2008 letter is not previously found in the record.

respond to the July 19, 2009 reconsideration request.2 In a merit decision dated August 17, 2010,
OWCP denied modification of the May 14, 2008 decision.
The Board has duly considered the matter and finds that the case is not in posture for
decision. Section 8124(b) of the Federal Employees’ Compensation Act (FECA) states
unequivocally that a claimant not satisfied with a decision of OWCP has a right, upon timely
request, to a hearing before a representative of OWCP.3 Any claimant dissatisfied with a
decision of OWCP shall be afforded an opportunity for an oral hearing or, in lieu thereof, a
review of the written record. A request for either an oral hearing or a review of the written
record must be submitted, in writing, within 30 days of the date of the decision for which a
hearing is sought. If the request is not made within 30 days or if it is made after a
reconsideration request, a claimant is not entitled to a hearing or a review of the written record as
a matter of right.4
Appellant’s hearing request was postmarked June 4, 2008 and received by OWCP on
June 10, 2008, well within 30 days of the May 14, 2008 OWCP decision denying appellant’s
claim. Appellant’s hearing request was therefore timely. While appellant also requested
reconsideration on July 16, 2009, the Board has long held that if there are simultaneous requests
for a hearing and for reconsideration, OWCP is to proceed with adjudicating the hearing request
before reconsideration.5 In this case, it was not proper for the claims examiner to exercise
discretion that is within the purview of the Branch of Hearings and Review. Inasmuch as
appellant’s hearing request was timely filed, the Board will set aside the August 17, 2010
decision and remand the case for OWCP to schedule an oral hearing.6

2

In a decision dated June 2, 2008, OWCP denied appellant’s recurrence claim since his primary claim had been
denied. On May 12, 2009 it refused to process CA-7 forms claiming compensation on the grounds that the initial
claim had been denied.
3

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

4

Claudio Vazquez, 52 ECAB 496 (2001).

5

See Eddie Franklin, 51 ECAB 223 (1999); Mary E. Schipske, 43 ECAB 318 (1991); Mary G. Allen, 40 ECAB
190 (1988); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings & Review of the Written
Record, Chapter 2.1601.3 (October 1992).
6

In view of the Board’s decision regarding the timeliness of appellant’s request for a hearing, the Board will not
address the merit issue of whether OWCP properly denied appellant’s claim.

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IT IS HEREBY ORDERED THAT the August 17, 2010 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded for OWCP to schedule a
hearing.
Issued: June 28, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE, CAMP
WOOD POST OFFICE, Camp Wood, TX,
Employer
__________________________________________

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

Docket No. 16-0504
Issued: June 16, 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 January 21, 2016 appellant filed a timely appeal from a November 9, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met his burden of proof to establish greater than 17 percent
permanent impairment of the left upper extremity, for which he 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 outlined in
the Board’s prior decision are incorporated herein by reference. The relevant facts are set forth
below.
OWCP accepted that on or before August 16, 2001 appellant, then a 45-year-old
distribution clerk, sustained an aggravation of cervical degenerative disc disease. Appellant
stopped work in early September 2001. OWCP placed his case on the periodic rolls effective
February 25, 2002.
Beginning in August 2001, appellant was followed by Dr. Gilbert R. Meadows, an
attending Board-certified neurosurgeon, who diagnosed cervical degenerative disc disease,
herniated discs at C4-5, C5-6, and C6-7 and spinal stenosis at C5-6. On September 24, 2001
Dr. Meadows performed a three-level anterior cervical discectomy and fusion. In an April 24,
2002 report, he found appellant permanently and totally disabled for work due to sequelae of the
cervical fusion as well as disc herniation at L3-4, L4-5, and L5-S1. A July 26, 2002 functional
capacity evaluation (FCE) showed appellant could perform part-time light-duty work.
On January 21, 2003 Dr. Meadows performed an anterior C3-4 discectomy and fusion
with allograft and anterior plate fixation, authorized by OWCP.3 He submitted reports through
April 2004 stating that appellant remained permanently disabled for work. Appellant retired
from the employing establishment effective April 16, 2004.
Dr. Meadows submitted reports from July 2004 to January 2006 finding that appellant
remained disabled. He recommended additional surgery. OWCP then obtained a second opinion
from Dr. Charles W. Kennedy, Jr., a Board-certified orthopedic surgeon.4 In an April 13, 2006
report, Dr. Kennedy opined that the proposed surgery and all past surgeries were inappropriate
and that appellant had no work-related disability.
OWCP subsequently found a conflict of medical opinion between Dr. Meadows for
appellant and Dr. Kennedy for the government regarding appellant’s ability to work. It selected
Dr. Theodore W. Parsons, III, a Board-certified orthopedic surgeon, as the impartial medical
examiner. In a June 1, 2006 report, Dr. Parsons opined that any additional cervical fusions
would fail. He found that according to the 2002 FCE, appellant was able to work four to six
hours a day light duty, with lifting limited to 20 pounds. Dr. Parsons noted that OWCP must

2

Docket No. 08-1334 (issued March 9, 2009).

3

On February 27, 2004 OWCP obtained a second opinion report from Dr. Govindasamy Durairaj, a Boardcertified orthopedic surgeon, who opined that appellant was totally disabled due to cervical fusions and desiccated
discs at L3-4, L4-5, and L5-S1. It obtained an FCE on May 14, 2004, showing that appellant could perform light or
sedentary duty with restrictions. In a May 14, 2004 work capacity evaluation, Dr. Durairaj noted that appellant was
permanently and totally disabled for all work. He found appellant unable to perform the sedentary tasks
demonstrated in the FCE.
4

Appellant claimed a schedule award (Form CA-7) on May 13, 2002 and on February 18, 2005.

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also consider appellant’s deconditioned body habitus, chronic pain, and use of prescribed
narcotics.
On August 17, 2006 Dr. David A. Roberts, a Board-certified orthopedic surgeon to whom
appellant was referred by a treating physician, opined that appellant had no impairment of the
extremities originating in the spine.5
In a January 5, 2007 report, Dr. Meadows opined that appellant could probably work four
hours a day with rest breaks but could not drive to and from work due to medication side
effects. He recommended additional cervical fusions. Dr. Meadows submitted February 20 and
March 7, 2007 reports noting increasing symptoms in the C6-7 dermatome, correlating to
March 7, 2007 magnetic resonance imaging (MRI) scan findings.6 On July 16, 2007
Dr. Meadows performed bilateral keyhole laminotomies at C7-T1, fusions with rod placement at
C3, C4, and C7 bilaterally and posterior fusions at C3-4 and C7-T1 with autologous bone graft.
Dr. David M. Hirsch, an attending osteopathic physician Board-certified in physiatry,
submitted periodic reports from July 21, 2009 through 2012 diagnosing a left long thoracic nerve
injury, diffuse atrophy of the supraspinatus and infraspinatus musculature, left cervical
paraspinals and trapezius dystonia, and a mild C7-T1 spondylolisthesis. He administered
periodic injections.7
Dr. John R. Hall, an attending osteopath, provided reports from 2011 through 2012
diagnosing cervical neuritis.
On January 17, 2013 appellant again claimed a schedule award. In support of his claim,
he submitted a December 17, 2012 impairment rating from Dr. Robert C. Lowry, an attending
Board-certified physiatrist, finding nine percent permanent impairment of the left arm due to
long thoracic nerve injury, according to the peripheral neuropathy criteria under Table 15-21 of

5

On June 22, 2006 the employing establishment offered appellant a modified clerk position for six hours a day,
but appellant refused the offer. On July 17, 2006 OWCP advised appellant that the offered position was suitable
work and that he had 30 days to accept the job or to provide valid reasons for refusal. On August 22, 2006 the
employing establishment modified the job offer from six to four hours a day. OWCP advised appellant that he had
15 additional days in which to accept the offered job. Appellant did not accept the job. On September 6, 2006
OWCP terminated appellant’s monetary compensation benefits under 5 U.S.C. § 8106(c)(2) for refusing suitable
work. After initially pursuing reconsideration before OWCP, appellant appealed to the Board. In a March 9, 2009
decision, the Board found that OWCP improperly terminated appellant’s compensation as the offered position was
not suitable work. See supra note 2. OWCP paid compensation retroactively to September 3, 2006.
6

OWCP obtained a second opinion report regarding the necessity of additional surgery from Dr. James F. Hood,
a Board-certified orthopedic surgeon. In a May 8, 2007 report, Dr. Hood found appellant totally disabled for work
due to an unstable cervical spine. He opined that the proposed fusions were medically necessary and appropriate.
Based on Dr. Hood’s opinion, OWCP approved Dr. Meadows’ request for surgery.
7

An August 19, 2009 cervical MRI scan showed postoperative changes from C3-4 through C6-7, with a mild one
to two-millimeter spondylolisthesis of C7 on T1. An August 5, 2011 EMG and nerve conduction velocity study of
the upper extremities showed impairment of the median motor and ulnar sensory nerves bilaterally.

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the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (hereinafter, A.M.A., Guides).8
On September 30, 2013 appellant underwent a left L5-S1 minimally invasive tubular
retraction discectomy.
In an October 2, 2013 report, Dr. Lorry Thornton, an osteopath Board-certified in family
practice, found 10 percent permanent impairment of the arms due to cervicalgia, utilizing the
peripheral nerve impairment criteria under Table 15-21 of the A.M.A., Guides.
On December 23, 2013 OWCP obtained a second opinion from Dr. Jerome O. Carter, a
Board-certified physiatrist, and provided him a statement of accepted facts and a copy of the
medical record. Dr. Carter agreed with Dr. Lowry that appellant had reached maximum medical
improvement for the cervical spine on February 3, 2012. On examination, he found normal
sensation and motor testing in the right arm, but diminished strength and sensation throughout
the left arm. Dr. Carter noted that appellant’s nonoccupational lumbar condition had not yet
stabilized. He explained that, under the A.M.A., Guides, neurologic impairment originating in
the spine should not be rated using peripheral or compression neuropathy criteria, but according
to Proposed Table 1 of the July/August 2009 The Guides Newsletter, Dr. Carter found that, under
Proposed Table 1, appellant had a class 1 Class of Diagnosis (CDX) based impairment for mild
motor deficits in the left C5 distribution, a grade modifier for Functional History (GMFH) of 2
for pain during normal activities according to Table 15-7,9 and a grade 1 modifier for Clinical
Studies (GMCS) for motor delay confirmed by electromyogram (EMG) testing according to
Table 15-9.10 He explained that there was no applicable grade modifier for findings on Physical
Examination (GMPE). Applying the net adjustment formula of (GMFH-CDX) + (GMCS-CDX),
or (2-1) + (1-1) resulted in a net modifier of +1, raising the default CDX from C to D, equaling a
six percent impairment of the left upper extremity. Using the same tables and calculation
methods, Dr. Carter found seven percent impairment of the left arm due to mild motor deficits in
the C6 distribution. Regarding the C7 distribution, he found that as there were no relevant
findings on clinical studies, resulting in five percent impairment for mild motor deficits.
Dr. Carter combined the 5, 6, and 7 percent impairments to equal 17 percent impairment of the
left arm. He also found no impairment of the right arm as appellant had normal strength and
sensation throughout the arm. In a March 7, 2014 report, an OWCP medical adviser concurred
with Dr. Carter’s rating and methodology.11
8

Table 15-21, page 436 of the sixth edition of the A.M.A., Guides is titled “Peripheral Nerve Impairment: Upper
Extremity Impairments.”
9

Table 15-7, page 406 of the sixth edition of the A.M.A., Guides is titled “Functional History Adjustment: Upper
Extremities.”
10

Table 15-9, page 410 of the sixth edition of the A.M.A., Guides is titled “Clinical Studies Adjustment: Upper
Extremities.”
11

A September 11, 2014 cervical MRI scan showed a C3-C7 osseous fusion, a C7-T1 anterior listhesis with
severe bilateral neuroforaminal narrowing, and an asymmetric right facet arthrosis causing severe right neural
foraminal narrowing. December 2, 2014 cervical spine x-rays showed a C3-7 fusion with fixation hardware at C3-4
and C7-T1.

4

By decision dated April 24, 2015, OWCP granted appellant a schedule award for 17
percent permanent impairment of the left upper extremity.12
In a September 11, 2015 letter, appellant requested reconsideration, contending that
OWCP relied on outdated medical reports. He provided reports from Dr. Hall dated from
February 2011 through January 2015, diagnosing a left long thoracic nerve injury, left
suprascapular nerve injury, and severe left C6-7 radiculopathy. Dr. Hall administered periodic
trigger point injections to the left cervical paraspinal and trapezius regions. Appellant also
submitted a May 23, 2013 cervical MRI scan report demonstrating postsurgical changes from
C3-4 and C7-T1, and facet hypertrophy from C2 to C7 with no canal stenosis. He also provided
copies of medical evidence previously of record.
By decision dated November 9, 2015, OWCP affirmed the April 24, 2015 decision,
finding that Dr. Hall’s reports were insufficient to outweigh that of Dr. Carter.
LEGAL PRECEDENT
The schedule award provisions of FECA13 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. It, however, does
not specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the 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 A.M.A., Guides has
been adopted by OWCP as a standard for evaluation of schedule losses and the Board has
concurred in such adoption.14 For schedule awards after May 1, 2009, the impairment is evaluated
under the sixth edition of the A.M.A., Guides.15
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).16 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition, which is then adjusted by grade modifiers based on functional history,

12

On June 1, 2015 appellant requested a review of the written record by a representative of OWCP’s Branch of
Hearings and Review. By decision dated June 25, 2015, OWCP denied appellant’s request for a hearing as it was
not timely filed within 30 days of the April 24, 2015 decision. It further denied the claim as the issue involved could
be addressed equally well through a request for reconsideration.
13

5 U.S.C. § 8107.

14

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (February 2013); see also, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
16

A.M.A., Guides at 3, section 1.3, “The International Classification of Functioning, Disability and Health (ICF):
A Contemporary Model of Disablement” (6th ed. 2009).

5

physical examination, and clinical studies.17 The net adjustment formula is (GMFH - CDX) +
(GMPE - CDX) + (GMCS - CDX).
Neither FECA nor its regulations provide for a schedule award for impairment to the
back or to the body as a whole.18 Furthermore, the back is specifically excluded from the
definition of organ under FECA.19 The sixth edition of the A.M.A., Guides does not provide a
separate mechanism for rating spinal nerve injuries as impairments of the extremities.
Recognizing that FECA allows ratings for extremities and precludes ratings for the spine, The
Guides Newsletter offers an approach to rating spinal nerve impairments consistent with sixth
edition methodology. For peripheral nerve impairments to the upper or lower extremities
resulting from spinal injuries, OWCP procedures indicate that July/August 2009 The Guides
Newsletter is to be applied.20
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the percentage of
impairment using the A.M.A., Guides.21
ANALYSIS
OWCP accepted that appellant sustained an aggravation of cervical disc disease
necessitating a C3-7 fusion. On January 17, 2013 appellant claimed a schedule award for
impairment of the extremities originating in the spine. He provided a December 17, 2012 report
from Dr. Lowry, an attending Board-certified physiatrist, finding nine percent permanent
impairment of the left upper extremity according to Table 15-21 of the A.M.A., Guides,
pertaining to peripheral nerve impairment. On September 30, 2013 Dr. Thornton, an attending
Board-certified family practitioner, found 10 percent permanent impairment both upper
extremities according to Table 15-21. However, under the A.M.A., Guides, impairment of an
extremity caused by spinal nerve injury is rated according to Proposed Table 1 of the
July/August 2009 The Guides Newsletter, and not using the criteria for peripheral neuropathy.
As appellant’s physicians did not provide an impairment rating according to the
appropriate portions of the A.M.A., Guides, OWCP obtained a second opinion from Dr. Carter, a
Board-certified physiatrist. Dr. Carter provided a December 23, 2013 report utilizing Proposed
Table 1 of the July/August 2009, The Guides Newsletter. He assessed combined 17 percent
permanent impairment of the left upper extremity due to motor deficits in the C5, C6, and C7
dermatomes. Dr. Carter provided detailed clinical findings and explained how those objective
elements warranted the percentages assessed. An OWCP medical adviser concurred with
17

Id. at 494-531 (6th ed. 2009).

18

See N.D., 59 ECAB 344 (2008); Tania R. Keka, 55 ECAB 354 (2004).

19

See 5 U.S.C. § 8101(19); Francesco C. Veneziani, 48 ECAB 572 (1997).

20

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700 (January 2010). The
Guides Newsletter is included as Exhibit 4.
21

Id. at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6(f) (February 2013).

6

Dr. Carter’s rating and methodology. OWCP then issued the April 24, 2015 schedule award for
17 percent permanent impairment of the left arm.
Appellant requested reconsideration. He submitted chart notes from Dr. Hall noting
periodic trigger point injections and a May 23, 2013 cervical spine MRI scan report. As these
documents did not address the percentage of permanent impairment, OWCP affirmed the
April 24, 2015 schedule award by decision dated November 9, 2015.
The Board finds that OWCP properly accorded Dr. Carter’s impairment rating the weight
of the medical evidence. Dr. Carter’s opinion was based on a statement of accepted facts and the
complete medical record. He provided a detailed impairment rating, utilizing the appropriate
portions of the A.M.A., Guides and The Guides Newsletter. Dr. Carter described how objective
clinical and electrodiagnostic findings in each affected cervical dermatome warranted the
specified percentage of impairment. In contrast, appellant’s physicians based their impairment
ratings on an incorrect methodology. There is no probative medical evidence of record
demonstrating that appellant sustained more than 17 percent permanent impairment of his left
upper extremity due to the accepted cervical condition. Therefore, OWCP’s November 9, 2015
decision was proper under the law and facts of this case.
On appeal, appellant asserts that OWCP has accepted a lumbar condition because it
utilized the diagnosis code “7726” to accept “Aggravation of Degenerative Disc Disease,” which
he refers “to the entire spine unspecified.” The Board notes that rather than referring to a
condition of the entire spine, the diagnosis code indicates acceptance of a condition affecting an
unspecified spinal region. The diagnosis code is merely a convenient, uniform method of
classification, and does not constitute acceptance of a lumbar condition.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish greater than
17 percent permanent impairment of the left upper extremity, for which he received a schedule
award.

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 9, 2015 is affirmed.
Issued: June 16, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.K., Appellant
and
DEPARTMENT OF THE NAVY, JOINT BASE
ANACOSTIA-BOLLING, Washington, DC,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Sara Kincaid, Esq. & Debra Hauser, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0970
Issued October 3, 2017

Case Submitted on the Record

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

JURISDICTION
On April 6, 2016 appellant, through counsel, filed a timely appeal from a February 1,
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.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish an injury on
May 5, 2014 in the performance of duty, as alleged.
FACTUAL HISTORY
On February 5, 2014 R.M., an employing establishment supervisor, filed a traumatic
injury claim (Form CA-1) alleging on behalf of appellant, then a 55-year-old security specialist.
She asserted that, at 1:45 p.m. that day, appellant “was found on the floor. Appellant stated [to
R.M.] that she was dizzy and then found herself on the floor.” She told paramedics that she hit
her head and that her back hurt. Appellant stopped work on February 5, 2014 and did not return.
R.M. provided a February 5, 2014 statement, asserting that at 9:06 a.m. that day, she
asked appellant to meet with her. Appellant refused, saying that she was “stressed.” R.M.
advised appellant that the meeting was not voluntary. Appellant met with R.M. and a second
level supervisor at 1:30 p.m. The meeting was to discuss appellant’s attendance and work
performance. Appellant had arrived to work at 11:30 a.m. without first informing her supervisor
that she would be late. She was already on a performance improvement plan and was required to
report to work at 7:00 a.m. Appellant contended that she was unable to report for work that
early. The meeting ended at 1:45 p.m. R.M. then went to a second meeting. Approximately,
five minutes later, a coworker informed her that appellant had fallen. In a February 6, 2014
statement, the second level supervisor corroborated R.M.’s account of the February 5, 2014
meeting, adding that appellant claimed to be “under stress due to work performance issues and
personal issues,” including a burst pipe at her home, financial difficulties, and the sale of her
home.
In a February 5, 2014 statement, T.H., appellant’s coworker, asserted that at 1:45 p.m.
that day, she saw appellant return to her desk and bend down to move a fan under her desk.
Appellant then stated “oh.” T.H. then heard a thump, looked up, and saw that appellant was on
the floor.
In a February 6, 2014 statement, a second coworker confirmed that, on February 5, 2014,
he heard a loud thud as if something had hit the floor. He got up and saw appellant “lying on the
floor next to the round table” where the employees ate lunch. The coworker called 911.
Appellant was then transported to the hospital by ambulance.
At the hospital on February 5, 2014, appellant was assessed and treated by several
physicians. Dr. Stanislaw Haciski, an emergency medicine physician, noted a two-year history
of hypertension, treated with daily prescription medication. He related appellant’s account of
“syncope at work” after “an argument with boss, was walking to her desk and she felt
palpitations and shortness of breath, then she totally passed out for 10 minutes. Appellant
contended that she hit the edge of desk, injured her head, and back.”
Dr. Amelia Pousson, Board-certified in emergency medicine, opined that appellant
experienced a “syncopal event in the context of emotional stress (argument with supervisor),”
but with antecedent chest pain and shortness of breath which were of concern for potential

2

neuro/cardiogenic etiology for syncope given risk factors of age and hypertension.
examination, Dr. Pousson observed a small scalp hematoma on the right occiput.

On

Dr. Janet F. Lewis, an attending Board-certified cardiologist, noted that appellant had
“stress at work and home.” A neurologic examination was normal. Dr. Lewis observed a small
hematoma at the right occiput without laceration. She stated an impression of a 55-year-old
woman with “likely vasovagal episode, mild closed[-]head injury.” Dr. Lewis diagnosed chest
pain and syncope.3
Appellant was discharged on February 7, 2014. Dr. Ty Nichols, an attending emergency
medicine physician, held her off work through February 14, 2014. He recommended a
psychiatric follow-up. Dr. Nichols indicated that appellant had no dietary or activity restrictions.
Appellant was then followed by Dr. Robert Timothy Pace, an attending family
practitioner. In February 10 and 24, 2014 reports, Dr. Pace diagnosed syncope and a concussion.
He held appellant off work through March 11, 2014 and continuing due to headaches and nausea.
Dr. Jean-Marc Estime, an attending Board-certified internist, provided reports from
February 11 to April 8, 2014 diagnosing “work[-]related stress,” headaches with nausea and
vomiting, and chronic low back pain. He held appellant off work through May 6, 2014. In an
April 16, 2014 report, Dr. Estime opined that she “sustained a syncopal episode on
February 5, 2014. [Appellant] has been under a lot of work[-]related stress. When she passed
out she suffered a concussion due to head trauma. [Appellant] was taken to [the hospital] by
ambulance. Her blood pressure was noted to be very high.”
On March 21, 2014 Dr. Bianca Ummat, an attending cardiologist, characterized the
February 5, 2014 incident as syncope and elevated blood pressure.4
In an April 7, 2014 letter, OWCP advised appellant of the additional evidence needed to
establish her claim, including factual corroboration of the events of February 5, 2014, and a
report from her attending physician explaining how and why work factors would have caused her
to fall. It afforded her 30 days to submit such evidence.
Appellant responded in an April 23, 2014 statement, explaining that, after the meeting
with her supervisors on February 5, 2014, she returned to her work space to retrieve work
documents from a safe. She did not remember retrieving the documents, but surmised that she
“must have tripped on something on the floor,” as she believed that her head impacted a steel
bolt safe, then struck the “lightly carpeted cement floor.” Appellant recalled regaining
consciousness while lying between the safe and a lunch table. She submitted medical evidence.
Dr. S. Krishna Nandipati, an attending neurologist, submitted April 14 and 22, 2014
reports relating appellant’s account that on February 5, 2014 she “was under a lot of stress as
[appellant] was not getting along with her supervisor.” Appellant “came out of her meeting and
3

A February 5, 2014 electrocardiogram was normal. A February 6, 2014 echocardiogram with Doppler study
showed mild left ventricular hypertrophy.
4

A March 24, 2014 computerized tomography scan of appellant’s head was normal.

3

while walking to her work desk, she passed out and hit her head [on] a steel container.”
Dr. Nandipati diagnosed headache, post-traumatic headache, and post-concussion syndrome.
In an April 21, 2014 letter, Dr. Pace explained that appellant’s February 5 to 7, 2014
hospitalization “showed that [appellant’s] syncope was likely vasovagal,” caused by work stress.
Appellant then fell, hitting her head.
By decision dated May 13, 2014, OWCP denied the claim, finding that appellant had not
established the events of February 5, 2014 as factual due to inconsistencies in the accounts of
record.
In a May 17, 2014 letter, appellant requested an oral hearing before a hearing
representative which was held September 8, 2014. At the hearing, she contended that on
February 5, 2014 at approximately 1:30 p.m., she rose from her chair to retrieve documents from
a safe. Appellant “tripped on a tattered carpet,” struck her head on the safe, then on the floor.
She contended that she underwent lumbar surgery on July 2, 2014 because she had injured her
back in the February 5, 2014 fall.
Following the hearing, appellant submitted her September 27, 2014 statement which
reflected her disagreement with R.M.’s assertion on the claim form. She contended that she was
dizzy after striking her head on the safe, but was not dizzy prior to falling.
In progress notes from Dr. Pace dated May 27 to September 11, 2014, he indicated that
he was holding appellant off work due to the concussion.
In a September 24, 2014 letter, Dr. Robert W. Macht, an attending surgeon, noted that
appellant asserted that she had fallen at work on February 5, 2014 because she tripped on a
carpet. However, on review of the medical record, he attributed the incident to a “syncopal
episode” which caused her to strike her head on the edge of her desk.
On October 22, 2014 the employing establishment submitted comments to the hearing
transcript, contending that appellant had not struck her head on the document safe or other
surface as she fell more than a foot from any object. Also, the carpeting was in perfect
condition, without holes or other defects. The employing establishment provided photographs,
diagrams, and measurements of appellant’s work area and the area where she fell. These
materials show that, based on her location on the floor after she fell, her head was 12 inches from
the document safe, and a similar distance from the lunch table. The employing establishment
contended that, under those circumstances, it was impossible for appellant to have struck her
head on an intervening surface as alleged.
T.H., appellant’s coworker, provided a September 8, 2014 statement reiterating that at
1:45 p.m. on February 5, 2014, appellant returned to her desk, saw that a small fan under her
desk was lying down, and “bent down to sit it up.” Appellant then walked towards the document
safe, then exclaimed “Oh!” T.H. then heard a thump, and saw appellant on the floor near the
document safe and a table. She rushed to appellant’s side, arriving approximately three seconds
after she fell. T.H. recalled that appellant was on the floor between the safe and the lunch table,
with her head approximately one foot away from the safe, such that she could not have struck her
head on it when falling. Emergency responders were then summoned, who took appellant to the
4

hospital. In an October 22, 2014 statement, T.H. asserted that she had not witnessed appellant
injuring her head on February 5, 2014. She noted that, while on the floor, appellant’s head was
approximately one foot from the safe, and that no document drawers were open. T.H. also
explained that the building where she and appellant worked was new construction which had
opened in May 2012. The carpet was not torn or tattered and had not been repaired or replaced.
By decision dated December 2, 2014, an OWCP hearing representative affirmed the
May 13, 2014 decision as modified, finding that the claim should be denied based on
performance of duty rather than fact of injury. He found that the evidence established that
appellant fell due to a “vasovagal reaction brought on by stress.” Appellant “arose from her
chair, experienced a syncopal episode, and fell to the floor without striking any intervening
object.” As her fall was based on a vasovagal incident, her fall was therefore idiopathic and not
unexplained. The hearing representative explained that the photographs and diagrams of
appellant’s work area ruled out her assertions that she struck her head on the document safe, and
that the employing establishment’s statements controverted her account of a worn or tattered
carpet.
On November 30, 2015 appellant requested reconsideration through counsel. Counsel
asserted that the evidence indicated that appellant’s February 5, 2014 fall was unexplained rather
than idiopathic. She also contended that there was sufficient evidence to establish that appellant
struck her head on some intervening surface.
The employing establishment submitted a December 24, 2015 response, asserting that the
medical evidence from February 5, 2014 and witness statements shortly thereafter did not
establish a head or back injury, or that appellant tripped on a carpet. Instead, the record
established that she experienced a vasovagal episode due to stress after being “counseled yet
again by [appellant’s] supervisor for failure to perform and follow instructions.”5
In December 8 and 9, 2015 reports, Dr. Pace found appellant disabled for work due to
back pain. He contended that she injured her head and aggravated a chronic back condition in
the February 5, 2014 fall.
By decision dated February 1, 2016, OWCP affirmed the December 2, 2014 decision. It
found that the medical evidence established that the most likely cause of appellant’s fall was a
vasovagal episode caused by stress. OWCP further found that the medical evidence submitted
on reconsideration was insufficient to establish that the February 5, 2014 fall was unexplained
rather than idiopathic. It noted that T.H.’s statements established that, from appellant’s position
on the floor, she could not have struck her head on the safe.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including the fact that the individual is an “employee of the United States” within the
5

Counsel provided a January 20, 2016 letter acknowledging that appellant had no direct recollection of the
February 5, 2014 fall, and therefore may have misspoken about the carpet being tattered.

5

meaning of FECA and that the claim was timely filed within the applicable time limitation
period of FECA, that an injury was sustained 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.6 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”8 To determine
whether a federal employee has sustained a traumatic injury in the performance of duty, it must
first be determined whether a “fact of injury” has been established. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place, and in the manner alleged.9 Second, the employee must submit sufficient
evidence, generally only in the form a medical evidence, to establish that the employment
incident caused a personal injury.10
It is a well-settled principle of workers’ compensation law and the Board has so held, that
an injury resulting from an idiopathic fall -- where a personal, nonoccupational pathology causes
an employee to collapse and to suffer injury upon striking the immediate supporting surface and
there is no intervention or contribution by any hazard or special condition of employment -- is
not within coverage of FECA.11 Such an injury does not arise out of a risk connected with the
employment and is therefore not compensable. The Board has made equally clear, the fact that
the cause of a particular fall cannot be ascertained or that the reason it occurred cannot be
explained, does not establish that it was due to an idiopathic condition.
This follows from the general rule that an injury occurring on the industrial premises
during working hours is compensable unless the injury is established to be within an exception to
such general rule.12 If the record does not establish that the particular fall was due to an
idiopathic condition, it must be considered as merely an unexplained fall, one which is
distinguishable from a fall in which it is definitely proved that a physical condition preexisted
and caused the fall.13
6

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 41 ECAB 1143 (1989).

7

Victor J. Woodhams, 41 ECAB 345 (1989).

8

20 C.F.R. § 10.5(ee).

9

John J. Carlone, 41 ECAB 354 (1989).

10

J.Z., 58 ECAB 529 (2007).

11

L.G., Docket No. 13-0927 (issued August 27, 2013). See Carol A. Lyles, 57 ECAB 265 (2005).

12

Dora J. Ward, 43 ECAB 767 (1992); Fay Leiter, 35 ECAB 176(1983).

13

John R. Black, 49 ECAB 624 (1998); Judy Bryant, 40 ECAB 207 (1988); Martha G. List, 26 ECAB
200 (1974).

6

ANALYSIS
Appellant claimed that she was injured as a result of a fall at work on February 5, 2014.
OWCP denied the claim, finding that the medical and factual evidence established that she
experienced emotional stress due to an administrative meeting with her supervisor about her
work performance. This resulted in vasovagal syncope, causing appellant to fall to the floor.
OWCP further found that the factual evidence, including coworker statements, and photographs
and diagrams provided by the employing establishment, demonstrated that she did not strike her
head on an intervening object when she fell.
The emergency room physicians who treated appellant immediately after the February 5,
2014 attributed her fall to vasovagal syncope precipitated by preexisting hypertension,
superimposed on emotional stress from the administrative performance discussion. Dr. Haciski,
an emergency medicine specialist, Dr. Pousson, Board-certified in emergency medicine, and
Dr. Lewis, a Board-certified cardiologist, all treated appellant in the hospital on
February 5, 2014. Each specialist opined that appellant experienced vasovagal syncope after a
stressful meeting with her supervisor. Dr. Haciski described a history of preexisting, idiopathic
hypertension requiring management with daily medication, while Dr. Pousson elaborated that
appellant’s hypertension was a risk factor for vasovagal syncope.
Appellant’s attending physicians also attributed the February 5, 2014 fall to vasovagal
syncope. Dr. Pace, an attending family practitioner, opined on February 10 and April 21, 2014
that appellant experienced an episode of vasovagal syncope on February 5, 2014. Dr. Estime, an
attending Board-certified internist, Dr. Ummat, an attending cardiologist, and Dr. Nandipati, an
attending neurologist, all characterized the February 5, 2014 fall as a syncopal episode
precipitated by stress. Dr. Macht, an attending surgeon, explained on September 14, 2014 that
although appellant insisted that she fell because she must have tripped on a torn carpet, the
medical record established that she sustained a syncopal episode. The Board finds that the
consistent and medically uncontroverted opinions of appellant’s many physicians that she fell on
February 5, 2014 due to vasovagal syncope establishes that the fall was idiopathic in nature. The
medical evidence establishes that appellant fell on February 5, 2014 due to a personal,
nonoccupational pathology.
“Injuries due to idiopathic falls can be divided into two categories. In the first, a
personal, nonoccupational pathology causes the employee to collapse and to suffer injury upon
striking the immediate supporting surface. There occurs neither intervention nor contribution by
any hazard or special condition of the employment. The initiating condition, in such level-floor
‘idiopathic’ falls, commonly is a heart attack, fainting spell, or epileptic fit. Since no
employment relationship exists, the weight of accumulated authority and the trend of recent
decisions both deny compensability.”14 “In the second class, though the cause of the fall is
clearly idiopathic, some job circumstance or working condition intervenes in contributing to the
incident or injury; for example, the employee falls onto, into, or from an instrumentality of the
employment. Thus, where, instead of simply falling directly to the floor on which [s]he has been
14

Rebecca C. Daily, 9 ECAB 255 (1957). (The decision cites to 1 Larson, Workers’ Compensation Law, section
12.14, which is quoted herein.) See also G.W., Docket No. 14-0593 (issued June 10, 2015).

7

standing, the employee drops into a pit, strikes against or gets tangled in a machine, or tumbles
off a platform, ladder or down the office stairs, compensation is generally awarded.”15
Appellant asserts that she sustained a head injury under the second category, alleging that
she struck her head on some intervening surface during the February 5, 2014 fall. The Board
finds, however, that there is insufficient evidence of record to establish that she struck a
supporting surface such that any injury would be covered under FECA.
There are numerous inconsistencies between appellant’s statements regarding the fall and
the accounts provided by coworkers and employing establishment managers. On April 23, 2014
she acknowledged that she did not remember the events of February 5, 2014, but that she
believed that her head struck the metal document safe, then the floor. Appellant reiterated this
account at the February 5, 2014 hearing, newly asserting that she sustained a serious lumbar
injury as well. However, the photographs and diagrams submitted by the employing
establishment, and T.H.’s statements that appellant’s head was 12 inches from the safe,
demonstrate that she could not have struck her head on the safe. Moreover, on February 5, 2014,
appellant told Dr. Haciski and Dr. Nandipati that she struck her head on her desk, not the safe.
These inconsistencies cast serious doubt on the reliability of appellant’s account of events.
While Dr. Pousson observed a small hematoma of the right occiput on February 5, 2014
examination, she did not identify how appellant sustained the injury. Also, the hospital medical
record does not mention or diagnose a concussion. The first mention of a concussion is
Dr. Pace’s February 10, 2014 report. Coupled with the numerous factual inconsistencies
regarding how appellant could have struck an intervening surface when she fell, the Board finds
that there is insufficient medical evidence to establish a compensable head injury under FECA.
The Board finds that appellant had an idiopathic fall and that she failed to establish any
intervention or contribution by the employing establishment to bring the fall within the
performance of duty. Accordingly, appellant has failed to meet her burden of proof.
On appeal counsel contends that OWCP did not meet its burden of proof to show that the
medical evidence establishes a personal nonoccupational pathology.16 She argues that
appellant’s physicians’ statements that the fall was likely due to vasovagal syncope were
speculative and of diminished probative value.17 Counsel contends that the February 5, 2014 fall
is therefore unexplained, and any resulting injuries compensable. As set forth above, appellant’s
physicians overwhelmingly attributed the fall to vasovagal syncope due to emotional stress and
hypertension. Their opinions are sufficient to establish that the fall was idiopathic and not
unexplained.
Alternatively, counsel argues that the fall is idiopathic, but that OWCP should accept a
head injury as compensable,18 based on the veracity of appellant’s factual statements that she
15

Id.

16

T.S., Docket No. 13-1608 (issued April 17, 2014); R.D., Docket No. 13-1854 (issued December 23, 2013).

17

Kathy A. Kelley, 55 ECAB 206 (2004).

18

A.F., Docket No. 10-1344 (issued February 11, 2011).

8

struck her head on an intervening surface during the fall.19 As set forth above, there are
inconsistencies between appellant’s assertions of tripping on a tattered carpet and striking her
head on a document safe, and the factual evidence showing that the carpet was undamaged and
that she could not have struck the safe. Also, appellant initially claimed to have struck her head
on her desk, but she was not at her desk when she fell. Additionally, she acknowledged that she
did not remember the events immediately preceding the fall. Under these circumstances,
appellant statements cannot be viewed as reliable.
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 established an injury on February 5, 2014 in the
performance of duty, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 1, 2016 is affirmed.
Issued: October 3, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

19

C.C., Docket No. 10-2054 (issued July 8, 2011).

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, OLD HICKORY POST )
OFFICE, Old Hickory, TN, Employer
)
__________________________________________ )
L.T., Appellant

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

Docket No. 19-1389
Issued: March 27, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 10, 2019 appellant filed a timely appeal from a May 23, 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 over
the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $1,708.67 for the period February 2 through
March 2, 2019 because she continued to receive disability compensation following her return to
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the May 23, 2019 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 evidence for
the first time on appeal. Id.

work; and (2) whether OWCP properly determined that appellant was at fault in the creation of the
overpayment, thereby precluding waiver of recovery of the overpayment.
FACTUAL HISTORY
On March 25, 2017 appellant, then a 42-year-old mail carrier, filed a traumatic injury claim
(Form CA-1) alleging that on March 21, 2017 she injured her left knee as a result of pushing a
gurney of mail while in the performance of duty. She stopped work on March 30, 2017. On
April 24, 2017 OWCP accepted the claim for sprains of the anterior cruciate ligament and medial
collateral ligament of the left knee. It subsequently expanded acceptance of appellant’s claim to
include chondral fracture of the left patella and chondromalacia patellae of the left knee. OWCP
paid her intermittent wage-loss compensation on the supplemental rolls as of May 24, 2017.
In a July 5, 2018 letter, OWCP advised appellant that she would be receiving wage-loss
compensation on the periodic rolls and outlined her entitlement to compensation benefits and her
responsibility to return to work in connection with her accepted injuries. In an attached EN1049,
it further provided: “[t]o minimize the possibility of an overpayment of compensation, NOTIFY
THIS OFFICE IMMEDIATELY WHEN YOU GO BACK TO WORK. For payments sent by
electronic funds transfer (EFT), a notification of the date and amount of payment appears on the
statement from your financial institution. You are expected to monitor your EFT deposits
carefully, at least every 2 weeks. If you have worked for any portion of the period for which a
deposit was made, advise OWCP immediately so that the overpayment can be collected.”
(Emphasis in the original.)
On February 2, 2019 appellant accepted a modified job offer from the employing
establishment to work as a limited-duty city carrier for 30 hours a week effective that date. In a
February 25, 2019 letter, OWCP outlined her entitlement to compensation benefits and noted that
her first payment was $2,261.67 for the period January 6 through February 2, 2019. In an attached
EN1049, it repeated the information relayed in its July 5, 2018 EN1049 regarding careful
monitoring of appellant’s EFT deposits.
A March 1, 2019 compensation termination worksheet indicated that for the period
February 2 to March 2, 2019 appellant was paid the amount of $2,342.82.
In a March 15, 2019 letter, OWCP indicated that the employing establishment notified it
that appellant returned to alternate work as a modified mail carrier working 30 hours a week
effective February 2, 2019. It stated that a final 28-day compensation payment that partially
covered a period following her return to work was issued, resulting in a payment of compensation
for $2,342.82.
An April 4, 2019 OWCP supplemental rolls payment worksheet indicated that appellant
had been entitled to receive $634.15 in compensation benefits for the period February 2 through
March 2, 2019.
In an April 5, 2019 manual adjustment form, OWCP noted that appellant had returned to
work on February 2, 2019 and had been paid compensation on the periodic rolls through
March 2, 2019. It noted that she received a net payment of $2,342.82 for the period February 2

2

through March 2, 2019, and indicated that during this time period she was entitled to 42
intermittent hours. OWCP calculated that the correct entitlement for appellant during this time
period was $634.15, and further calculated that the net difference between the compensation that
she was entitled to and the compensation she received was $1,708.67.
In an April 8, 2019 preliminary determination, OWCP informed appellant that she received
an overpayment of compensation in the amount of $1,708.67 for the period February 2 through
March 2, 2019, because she returned to part-time work on February 2, 2019 and received
compensation for total disability through March 2, 2019. It explained that it had subtracted her
actual entitlement of $634.15 from the $2,342.82 compensation paid. OWCP found that appellant
was at fault in the creation of the overpayment because she accepted a payment that she knew or
reasonably should have known, was incorrect. Additionally, it informed her that within 30 days
that she could request a telephone conference, a final decision based on the written evidence, or a
prerecoupment hearing. OWCP requested that appellant complete an enclosed overpayment
recovery questionnaire (Form OWCP-20) and submit supporting financial documentation.
Appellant did not respond.
By decision dated May 23, 2019, OWCP finalized the overpayment of compensation in the
amount of $1,708.67 for the period February 2 through March 2, 2019. It determined that
appellant was at fault in the creation of the overpayment because she accepted compensation
payments which she knew or should have known were incorrect. OWCP requested payment for
the full amount of $1,708.67 within 30 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.3 Section 8129(a) of FECA provides, in pertinent part, that when an
overpayment has been made to an individual under this subchapter 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 an individual is entitled.4
Section 8116(a) of FECA provides that, while an employee is receiving compensation or
if he or she has been paid a lump sum in commutation of installment payments until the expiration
of the period during which the installment payments would have continued, the employee may not
receive salary, pay, or remuneration of any type from the United States, except in limited specified

3

5 U.S.C. § 8102(a).

4

Id. at § 8129(a).

3

instances.5 OWCP’s procedures provide that an overpayment of compensation is created when a
claimant returns to work, but continues to receive wage-loss compensation.6
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $1,708.67 for the period February 2 through March 2, 2019
because she continued to receive disability compensation following her return to work.
Appellant resumed part-time work on February 2, 2019 for 30 hours a week. However,
OWCP continued to pay her wage-loss compensation for temporary total disability following her
return to work, which resulted in an overpayment of compensation. Appellant was not entitled to
receive temporary total disability benefits and actual earnings for the same time period.7
In its overpayment determination, OWCP calculated the amount of the overpayment by
taking the amount of total disability compensation received for the February 2 through March 2,
2019, $2,342.82, and subtracting $634.15, the amount of wage-loss compensation that appellant
was entitled to receive during that time period. Appellant has not disputed fact or amount of the
overpayment. Thus, the Board finds that she received an overpayment of compensation in the
amount of $1,708.67 during the above-noted period.8
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA provides as follows that adjustment or recovery by the United
States may not be made when incorrect payment has been made to an individual who is without
fault and when adjustment or recovery would defeat the purpose of this subchapter or would be
against equity and good conscience.9 No waiver of an overpayment is possible if the claimant is
at fault in creating the overpayment.10
On the issue of fault, 20 C.F.R. § 10.433(a) provides that an individual is with fault in the
creation of an overpayment who: (1) made an incorrect statement as to a material fact which the
individual knew or should have known to be incorrect; (2) failed to furnish information which the
individual knew or should have known to be material; or (3) with respect to the overpaid individual

5

Id. at § 8116(a).

6

K.K., Docket No. 19-0978 (issued October 21, 2019); B.H., Docket No. 09-0292 (issued September 1, 2009);
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Determinations in an Overpayment, Chapter
6.300.4(g) (September 2018).
7

S.N., Docket No. 19-1018 (issued November 12, 2019).

8

See R.Q., Docket No. 18-0964 (issued October 8, 2019).

9

5 U.S.C. § 8129(b).

10

C.L., Docket No. 19-0242 (issued August 5, 2019).

4

only, accepted a payment which the individual knew or should have been expected to know was
incorrect.11
With respect to whether an individual is without fault, section 10.433(b) of OWCP
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.12
ANALYSIS -- ISSUE 2
The Board finds that OWCP improperly determined that appellant was at fault in the
creation of the overpayment for February 2, 2019. The Board further finds that OWCP properly
determined that she was at fault in the creation of the overpayment for the period February 3
through March 2, 2019.
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.13 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.14 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.15
Appellant returned to work on February 2, 2019, but OWCP paid her compensation for the
period January 6 through February 2, 2019 in a direct deposit payment on February 2, 2019. There
is no documentation or other evidence to demonstrate that she had clear knowledge at the time the
bank received the February 2, 2019 direct deposit that the payment was incorrect.16 The Board
thus finds that appellant was without fault in accepting the initial direct deposit covering
February 2, 2019, the first day of the period of the overpayment.

11

20 C.F.R. § 10.433(a).

12

Id. at § 10.433(b).

13

See C.H., Docket No. 19-1470 (issued January 24, 2020); see also Claude T. Green, 42 ECAB 174, 278 (1990).

14

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

15

Id.

16

See K.E., Docket No. 19-0978 (issued October 25, 2018).

5

Although OWCP may have been negligent in making incorrect payments, this does not
excuse a claimant from accepting payments he or she knew or should have known to be incorrect.17
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, a
claimant will be at fault for accepting the payments subsequently deposited. By the time of the
second payment, 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 work on February 2, 2019.18
In the EN1049 forms dated July 5, 2018 and February 25, 2019, OWCP advised appellant
that an overpayment would be created if she returned to work, but continued to receive wage-loss
compensation. It informed her that she should monitor her EFT deposits carefully, and
immediately advise OWCP if she worked for any portion of the period for which a deposit was
made. Therefore, by the time appellant received the second direct deposit on March 2, 2019, she
knew or should have known that she should not accept a payment in an amount representing
temporary total disability.
The Board finds that this case is not in posture for decision regarding the issue of waiver
of recovery of the overpayment for February 2, 2019. The Board will set aside the May 23, 2019
decision regarding the issue of fault for that day and remand the case to OWCP to determine
whether appellant is entitled to waiver of recovery of the overpayment covering
February 2, 2019.19
The Board further finds that appellant was at fault in the creation of the overpayment
resulting from the remaining direct deposit payment for the period February 3 through
March 2, 2019.20
On appeal appellant requests a payment plan. The Board notes that it lacks jurisdiction
over the issue of a payment plan as appellant is no longer receiving wage-loss compensation
benefits.
CONCLUSION
The Board finds that OWCP properly determined that appellant received a $1,708.67
overpayment of compensation for the period February 2 through March 2, 2019 because she
continued to receive disability compensation following her return to work. The Board further finds
that she was without fault in the creation of the overpayment for February 2, 2019, and that she
was at fault in the creation of the overpayment for the period February 3 through March 3, 2019.

17
P.B., Docket No. 19-0329 (issued December 31, 2019); see C.G., Docket No. 15-0701 (issued
December 9, 2015).
18

Id.

19

See K.K., Docket No. 19-0978 (issued October 21, 2019).

20

Id.

6

The case will be remanded to OWCP to consider waiver of recovery of the overpayment for
February 2, 2019.
ORDER
IT IS HEREBY ORDERED THAT the May 23, 2019 decision of the Office of Workers’
Compensation Programs is affirmed in part and set aside in part, and the case is remanded for
further action consistent with this decision of the Board.
Issued: March 27, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
P.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Omaha, NE, Employer
_________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-1439
Issued: January 23, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JURISDICTION
On June 22, 2012 appellant filed a timely appeal of a May 9, 2012 merit decision of the
Office of Workers’ Compensation Programs (OWCP) which affirmed a January 20, 2012
decision denying his claim for a recurrence. 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 a recurrence of
disability beginning October 21 through November 1, 2011 causally related to his accepted
condition.
FACTUAL HISTORY
On March 28, 2011 appellant, then a 46-year-old clerk, filed an occupational disease
claim for a repetitive motion injury to the right shoulder and arm. He had engaged in repetitive
motions for the past 24 years. Appellant became aware of his condition on February 1, 2011.
1

5 U.S.C. § 8101 et seq.

On July 15, 2011 OWCP accepted his claim for a right rotator cuff tear. On August 26, 2011
appellant underwent a right shoulder arthroscopy with acromioplasty and a right shoulder rotator
cuff repair. He stopped working on that date, and was paid wage-loss compensation for
temporary total disability from August 26 through October 9, 2011.
On October 7, 2011 Dr. Michael J. Morrison, a Board-certified orthopedic surgeon and
treating physician, released appellant to return to work on October 10, 2011 with no use of his
right arm to reach, lift or carry at or above shoulder level. Appellant returned to work for eight
hours a day in a modified capacity on October 11, 2011.
In an October 20, 2011 report, Dr. Morrison advised that appellant was seven weeks
postsurgery from his rotator cuff repair of the right shoulder. He provided examination findings
and stated that appellant was “regaining range of motion on a progressive basis.” Appellant had
regained almost full passive flexion and passive abduction to about 150 degrees. Dr. Morrison
recommended a home overhead pulley system for passive stretching and home strengthening
exercises. He placed appellant “at four hours a day with no use of his right arm to lift, squeeze
or grip.” Dr. Morrison also completed a duty status report. He noted that appellant’s hours were
reduced to four hours a day and prescribed medication.
On October 22, 2011 appellant filed a Form CA-7 claiming compensation for the period
October 8 through 21, 2011. He explained that he returned to work on October 21, 2011 to light
duty for four hours a day on the advice of his treating physician.
In a November 4, 2011 report, Dr. Morrison noted that appellant had regained excellent
range of motion and his strength was returning nicely. He explained that appellant’s only
limitation was internal rotation. Dr. Morrison released appellant to work effective November 4,
2011 for eight hours per day with no lifting greater than 25 pounds from ground level to waist
level.
Appellant returned to light-duty work for eight hours a day with modifications on
November 4, 2011.
On November 5, 2011 appellant filed a Form CA-7 claim for compensation for the period
October 22 through November 4, 2011.
In a letter dated November 18, 2011, OWCP advised appellant that it received his claim
for compensation for the periods October 8 to November 4, 2011. It noted that it processed
payment for 16 hours of wage-loss compensation for the dates of October 8 and 9, 2011. OWCP
also advised appellant that he would receive a payment for wage-loss compensation on
November 4, 2011, for one hour for attendance at a medical appointment. Appellant was advised
that OWCP was unable to pay compensation for four hours on October 21, 2011 or for 36 hours
from October 22 through November 1, 2011. OWCP further advised him of the medical
evidence needed to substantiate his claim for wage-loss compensation. It allotted appellant 30
days to submit evidence to substantiate his claim.
In a letter dated November 30, 2011, appellant disagreed with OWCP regarding his
claimed compensation.

2

By decision dated January 20, 2012, OWCP denied appellant’s claim for wage-loss
compensation for the period October 21 through November 1, 2011.
On February 6, 2012 appellant requested a review of the written record. In a February 6,
2012 report, Dr. Morrison noted that appellant was requesting disability compensation for four
hours on October 21, 2011 and for 36 hours from October 22 to November 1, 2011. He
explained that appellant required increased pain medication which had the potential to alter his
mental status, therefore, he believed it was safer for appellant to only work four hours per day
versus full time. In a treatment note of the same date, Dr. Morrison indicated that appellant was
doing well. He stated that appellant had full extension and abductions, and some slight cuff
weakness, but was pleased with the overall result of his surgery and wished to return to gainful
employment without restriction. Dr. Morrison opined that appellant reached maximum medical
improvement.
OWCP received additional treatment notes from Dr. Morrison dated
November 30, 2011 and April 8, 2012.
By decision dated May 9, 2012, an OWCP hearing representative affirmed the
January 20, 2012 decision, finding that appellant had not established that he sustained a
recurrence of disability for the period October 21 through November 1, 2011.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition resulting from a previous injury or
illness without an intervening cause or a new exposure to the work environment that caused the
illness. It can also mean an inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her work-related
injury or illness is withdrawn or when the physical requirements of such an assignment are
altered so that they exceed his or her established physical limitations.2
An individual who claims a recurrence of disability resulting from an accepted
employment injury has the burden of establishing that the disability is related to the accepted
injury. This burden requires furnishing medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, concludes that the disabling condition is
causally related to the employment injury and who supports that conclusion with sound medical
reasoning.3
OWCP’s procedures require that in cases where recurrent disability for work is claimed
within 90 days or less from the first return to duty, the attending physician should describe the
duties which the employee cannot perform and the demonstrated objective medical findings that
form the basis for the renewed disability for work.4
2

J.F., 58 ECAB 124 (2006); 20 C.F.R. § 10.5(x).

3

Dennis E. Twardzik, 34 ECAB 536 (1983); Max Grossman, 8 ECAB 508 (1956); 20 C.F.R. § 10.104.

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.6(a) and (b)
(September 2003).

3

An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.5
ANALYSIS
In the instant case, appellant returned to light-duty work for eight hours per day on
October 11, 2011. He subsequently claimed wage-loss compensation for these reduced hours for
the period October 21 through November 1, 2011. Thus, appellant claimed that he suffered a
recurrence of disability beginning October 21, 2011, when he stopped working the full-time,
modified-duty position within 90 days of his first return to duty. There is no evidence that the
nature of the light-duty work provided by the employer changed or that it was no longer
available.
Appellant provided several reports from Dr. Morrison. In his February 6, 2012 report,
Dr. Morrison addressed the period beginning October 21 through November 1, 2011. He
explained that appellant required “increased pain medication which had the potential of altering
his mental status, therefore we felt it was safer for him to only work four hours per day versus
full time.” The Board notes, while Dr. Morrison addressed the period commencing October 21
through November 1, 2011 and noted the reason he reduced the number of hours that appellant
could work, he did not address particular examination findings that supported the need for
increased pain medication and reduced work hours. This is especially important as he previously
noted in his October 7, 2011 report that appellant could work eight hours of modified work daily.
Dr. Morrison did not provide any findings or rationale to support an objective worsening of his
condition, and what specific duties of the full-time, modified-duty position the claimant could
not perform on a full-time basis. Thus, this report is of limited probative value. In his
October 20, 2011 report, Dr. Morrison provided examination findings and indicated that he
would place appellant “at four hours a day with no use of his right arm to lift, squeeze or grip.”
He also completed a duty status report and noted that appellant’s hours were reduced to four
hours per day and prescribed medication. However, Dr. Morrison did not offer any explanation
of the objective findings that necessitated the reduction of appellant’s work hours.6 In his
November 4, 2011 report, he released appellant to work eight hours per day within certain
restrictions, but he did not address why appellant was unable to work full-time modified duties
from October 21 through November 1, 2011. Consequently, the reports of Dr. Morrison contain
insufficient explanation to establish that appellant’s claimed disability from October 21 through
November 1, 2011 is attributable to his accepted condition.
Appellant did not submit any other medical evidence supporting a worsening of his
accepted condition which substantiated work-related disability during the claimed period.
Consequently, he has not met his burden of proof in establishing his claim for a recurrence of
disability.

5

Walter D. Morehead, 31 ECAB 188 (1986).

6

See supra note 4.

4

On appeal, appellant argues that his condition only began to improve after he worked half
days. He also noted that other coworkers who had rotator cuff tears took longer than him to
recover. As noted above, the medical evidence does not contain the information needed to
support the period of disability as it did not contain demonstrated objective medical findings that
form the basis for the renewed disability for work.
Appellant may submit evidence or argument with a written request for reconsideration
within one year of this merit decision pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605
through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a recurrence
of disability beginning October 21 through November 1, 2011 causally related to his February 1,
2011 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the May 9, 2012 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 23, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5