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

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

Docket No. 08-1432
Issued: May 21, 2010

Case Submitted on the Record

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

JURISDICTION
On April 15, 2008 appellant, through her attorney, filed a timely appeal of the
November 30, 2007 merit decision of the Office of Workers’ Compensation Programs finding
that she did not have disability for work after March 22, 2007 causally related to her employment
injury. Pursuant to 20 C.F.R. §§ 501.2 and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant had any work-related disability on or after March 22, 2007
causally related to her February 23, 2007 employment injury.
FACTUAL HISTORY
On February 23, 2007 appellant, then a 47-year-old rural mail handler, injured her right
wrist and hand when a corner of a supply cabinet fell on her. Dr. Steven J. Ravich, an attending
Board-certified orthopedic surgeon, advised that appellant was disabled on March 5, 2007 due to
a work-related sprained right wrist. On March 21, 2007 he diagnosed “work-related injury of a

sprained right wrist and carpal tunnel syndrome.” Dr. Ravich reiterated that appellant was
disabled. In a letter dated April 5, 2007, the Office requested additional factual and medical
evidence from appellant and allowed 30 days for a response.
On April 11, 2007 Dr. Ravich diagnosed right wrist and hand sprain as well as right
carpal tunnel syndrome. He indicated that appellant could not work.
On July 18, 2007 Dr. Stephen Nedelcu, an internist, advised appellant sustained a work
trauma on February 23, 2007 when she opened a supply closet and many items including a large
tape dispenser fell on her right hand and wrist. Appellant developed pain and swelling in her
hand with numbness in her second, third and fourth fingers. He found weakness and swelling on
examination. Appellant was unable to make a fist. He diagnosed contusion of the right hand
with possible nerve involvement at the level of the second, third and fourth fingers. Dr. Nedelcu
attributed appellant’s contusion to her employment. He stated that appellant was temporarily
disabled from February 23 to April 18, 2007.
On March 5, 2007 Dr. Ravich stated that while appellant was at work several items of
various weights from 5 to 10 pounds fell from a cabinet and landed on her right wrist. Appellant
had minimal tenderness on palpation over the distal radius, a negative Tinel’s sign and negative
Phalen’s test with good grip strength. Dr. Ravich diagnosed right wrist sprain and indicated that
appellant should not work for two weeks. On March 21, 2007 he reported that appellant had a
positive Tinel’s sign and a positive Phalen’s test as well as a negative Finkelstein test and
decreased grip strength. Appellant experienced a sharp dull light touch discrepancy
differentiation of the third, fourth and fifth digits on the right hand. On April 11, 2007
Dr. Ravich found decreased motion and decreased strength of the right wrist with positive
Tinel’s sign and Phalen’s test. He stated that appellant should not work. On April 24, 2007
Dr. Ravich stated that appellant sustained a work-related injury of sprained right wrist and right
carpal tunnel syndrome on February 23, 2007. He advised that she was temporarily totally
disabled from March 5 to April 24, 2007.
In a May 9, 2007 decision, the Office accepted that appellant sustained a right hand
sprain and contusion of the wrist and hand on February 23, 2007. In a separate decision dated
May 9, 2007, the Office found that appellant was not entitled to continuation of pay after
March 21, 2007. It noted that Dr. Ravich reported that appellant did not have signs of carpal
tunnel syndrome on March 5, 2007 finding a negative Tinel’s sign and Phalen’s test. On
March 21 and April 11, 2007, however, he listed positive findings of carpal tunnel syndrome and
noted that appellant had not returned to work. The Office concluded that the carpal tunnel
findings could not be related to the accepted employment injury and that appellant’s
employment-related disability ceased on March 21, 2007.1
Appellant filed a claim for compensation on June 4, 2007 and requested wage-loss
compensation from March 22 through June 1, 2007. In a note dated May 9, 2007, Dr. Ravich
diagnosed carpal tunnel syndrome and found that appellant was totally disabled.

1

There is no evidence that appellant requested review of this decision.

2

In a June 8, 2007 decision, the Office denied appellant’s claim for compensation due to
her February 23, 2007 employment injury finding that her disability was due to an independent
intervening, nonwork-connected injury.
Appellant, through her attorney, requested an oral hearing on June 21, 2007. In a
May 23, 2007 report, Dr. Ravich stated, “The patient had an acute event and has no prior history
of problems with her wrist and hand and is to be only treated for the acute process.” He
concluded that appellant’s present symptoms were causally related to employment injury.
Dr. Ravich completed a form report on the same date and diagnosed right wrist sprain and right
wrist carpal tunnel syndrome. He indicated with a checkmark “yes” that the condition was
caused or aggravated by her employment activity. Dr. Ravich released appellant to return to
light duty on June 12, 2007. He stated that appellant’s right carpal tunnel syndrome was
“directly and causally related to her injury of record.” Appellant returned to work on June 28,
2007 and Dr. Ravich supported total disability from the date of injury until the return to work
date. On June 25, 2007 Dr. Ravich stated that appellant had bilateral carpal tunnel syndrome
more prominent on the right.
In a note dated February 5, 2007, appellant reported to Dr. Nedelcu that on February 23,
2007, “several items including two large tape dispensers (with sand inside) fell on my right hand
and wrist.”
At the October 16, 2007 oral hearing appellant stated that she opened the supply cabinet
on February 23, 2007 and the contents fell out and hit her right hand, arm and leg. She was
struck by two large tape dispensers, stationery and other objects. Appellant noted that she had a
previous work-related wrist injury in 2003 and did not injure her right hand between March 5
and 21, 2007.
On October 5, 2007 Dr. Mark A.P. Filippone, Board-certified in physical medicine and
rehabilitation, reported that appellant opened the supply cabinet and several heavy objects fell on
her hands and wrist including large tape dispensers, boxes and packages of stationery. He
examined appellant and diagnosed bilateral carpal tunnel syndrome and evidence of posttraumatic contusion and tendinitis of the right wrist. Dr. Filippone stated, “In my professional
medical opinion all of the above abnormalities are directly and solely the result of the injury
sustained when the objects fell on her wrists when she opened the supply cabinet on
February 23, 2007.”
By decision dated November 30, 2007, the hearing representative affirmed the June 8,
2007 decision finding that the medical evidence did not support a causal relationship between the
February 23, 2007 work injury and her diagnosed condition of right carpal tunnel syndrome.
On appeal appellant’s attorney alleged that appellant had established a traumatic injury
claim and that the Office should undertake additional development of the medical evidence.

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LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim, including that any disability or
specific condition for which compensation is claimed is causally related to the employment
injury.3 The term disability is defined as the incapacity because of an employment injury to earn
the wages the employee was receiving at the time of the injury, i.e., a physical impairment
resulting in loss of wage-earning capacity.4
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative and substantial medical evidence.5 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that she hurt too much to work, without objective findings of disability
being shown, the physician has not presented a medical opinion on the issue of disability or a
basis for payment of compensation.6 The Board will not require the Office to pay compensation
for disability in the absence of any medical evidence directly addressing the specific dates of
disability for which compensation is claimed. To do so would essentially allow employees to
self-certify their disability and entitlement to compensation.7
Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical evidence.8 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.9 Neither the fact that a
disease or condition manifests itself during a period of employment nor the belief that the disease

2

5 U.S.C. §§ 8101-8193.

3

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Kathryn Haggerty, 45 ECAB 383 (1994);
Elaine Pendleton, 40 ECAB 1143 (1989).
4

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
5

See Fereidoon Kharabi, 52 ECAB 291 (2001).

6

Id.

7

Id.

8

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

9

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

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or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.10
ANALYSIS
The Office accepted that appellant sustained right hand and wrist sprain due to her
February 23, 2007 employment injury. Appellant filed a claim for compensation requesting
wage-loss compensation from March 22 through June 1, 2007.
Appellant submitted a series of reports beginning on March 21, 2007 from Dr. Ravich, a
Board-certified orthopedic surgeon, diagnosing carpal tunnel syndrome. In a note dated
April 24, 2007, he stated that appellant sustained a work-related injury of sprained right wrist
and right carpal tunnel syndrome on February 23, 2007. Dr. Ravich opined that appellant was
temporarily totally disabled from March 5 to April 24, 2007. This report is not sufficient to meet
appellant’s burden of proof as Dr. Ravich did not offer an opinion on the causal relationship
between the diagnosed condition of carpal tunnel syndrome and appellant’s February 23, 2007
employment injury. As noted above, in order to establish disability for work, the medical
evidence must include a physician’s opinion determining whether or not the accepted
employment injury caused the period of disability claimed. Without a statement that the
condition of carpal tunnel syndrome was caused or aggravated by appellant’s employment, this
report does not establish appellant’s disability claim.
On May 23, 2007 Dr. Ravich stated that appellant had sustained “an acute event”
concluded that appellant’s present symptoms were causally related to employment injury. He
also completed a form report on the same date diagnosing right wrist sprain and right wrist carpal
tunnel syndrome and indicating with a checkmark “yes” that these conditions were caused or
aggravated by her employment activity. Dr. Ravich released appellant to return to light duty on
June 12, 2007 and stated that appellant’s right carpal tunnel syndrome was “directly and causally
related to her injury of record.” While these reports contain an opinion that appellant’s accepted
employment injury resulted in carpal tunnel syndrome, Dr. Ravich failed to explain how the
nature of the injury to appellant’s hand or wrist by a tape dispenser and other objects would
result in the carpal tunnel syndrome. The Board has held that an opinion on causal relationship
which consists only of a physician checking “yes” to a medical form report question on whether
the claimant’s disability was related to the history given is of little probative value. Without any
explanation or rationale for the conclusion reached, such report is insufficient to establish causal
relationship.11 Dr. Ravich did not explain the processes by which a traumatic incident could result
in carpal tunnel syndrome and why he believed that the employment incident was competent to
cause this condition in appellant. As he failed to provide any explanation of how the employment
injury caused carpal tunnel syndrome in addition to the accepted conditions of contusion and
strain, his reports are not sufficient to establish that appellant’s disability for work on or after
March 21, 2007 was due to employment.

10

Dennis M. Mascarenas, 49 ECAB 215 (1997).

11

Lucrecia M. Nielson, 41 ECAB 583, 594 (1991).

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Dr. Filippone, a physician Board-certified in physical medicine and rehabilitation,
completed a report on October 5, 2007 and described appellant’s employment incident of
February 23, 2007 noting that several heavy objects fell on her hands and wrists including large
tape dispensers, boxes and packages of stationery. He diagnosed bilateral carpal tunnel
syndrome and evidence of post-traumatic contusion and tendinitis of the right wrist.
Dr. Filippone stated, “In my professional medical opinion all of the above abnormalities are
directly and solely the result of the injury sustained when the objects fell on her wrists when she
opened the supply cabinet on February 23, 2007.” He provided an accurate history of injury and
diagnosed carpal tunnel syndrome. Dr. Filippone also opined that this condition was related to
the accepted employment incident. However, he did not explain how and why he believed that
the falling tape dispenser resulted in bilateral carpal tunnel syndrome. Appellant had previously
stated that only her right wrist was injured on February 23, 2007. This factual discrepancy
suggests that appellant’s right carpal tunnel syndrome might also be due to another cause other
than her accepted employment injury. As Dr. Filippone did not address this factual aspect of
appellant’s claim and did not offer medical reasoning supporting his opinion of causal
relationship, his report is not sufficient to establish that the diagnosed condition of carpal tunnel
syndrome and any resulting disability is related to appellant’s accepted February 23, 2007
employment incident.
CONCLUSION
The Board finds that appellant did not submit the necessary medical opinion evidence to
establish that she had disability after March 22, 2007 due to her accepted employment injury of
February 23, 2007.

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ORDER
IT IS HEREBY ORDERED THAT November 30, 2007 decision of Office of Workers’
Compensation Programs is affirmed.
Issued: May 21, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Diego, CA, Employer
__________________________________________

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

Docket No. 16-0040
Issued: February 24, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 18, 2015 appellant filed a timely appeal from a September 16, 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 appellant met her burden of proof to establish an injury in the
performance of duty on July 30, 2015.
FACTUAL HISTORY
On July 31, 2015 appellant, then a 56-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on July 30, 2015 she was in a motor vehicle accident when her postal
vehicle rolled backwards and the brakes did not respond. She explained that she approached a
mailbox which was on a hill and was looking to deliver a parcel when the vehicle began to move
1

5 U.S.C. § 8101 et seq.

backwards. The brakes were not responding so she attempted to drive forward, causing the
vehicle to land on its side. Appellant complained of soreness in her neck and upper arm. She
notified her supervisor of the incident on July 30, 2015 and stopped work, and first sought
medical treatment on July 31, 2015.
In a July 31, 2015 work status and duty status report (Form CA-17), a physician assistant
diagnosed cervicalgia, cervical sprain/strain, muscle spasm of neck, and bilateral thigh stiffness.
In an August 6, 2015 work status report, Dr. Shaheen Zakaria, a treating physician,
diagnosed bilateral thigh stiffness, cervical sprain/strain, and muscle spasm of neck. Appellant
was released to work without restrictions.
By letter dated August 12, 2015, OWCP notified appellant that the evidence of record
was insufficient to support her claim. Appellant was advised of the medical and factual evidence
needed and was asked to respond within 30 days.
In an August 6, 2015 medical report, Dr. Zakaria reported that appellant returned for a
follow-up visit for an injury sustained on July 30, 2015. She noted the context as motor vehicle
accident. Dr. Zakaria diagnosed bilateral thigh stiffness, cervical sprain/strain, and muscle
spasm of neck and released appellant to work without restrictions.
By letter dated August 10, 2015, the employing establishment reported that appellant’s
driving privileges were temporarily suspended because of the July 30, 2015 motor vehicle
accident at which she was found at fault based on her failure to follow traffic laws.
In an August 14, 2015 medical report, Dr. Michael Valdez, Board-certified in internal
medicine, reported that appellant returned for a follow-up visit from a July 30, 2015 injury. He
diagnosed cervicalgia and muscle spasm of the neck. Dr. Valdez noted improvement since the
last examination and released appellant to work without restrictions.
By decision dated September 16, 2015, OWCP denied appellant’s claim finding that the
evidence of record failed to establish that her diagnosed conditions were causally related to the
accepted July 30, 2015 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden to establish the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed are causally related to the
employment injury.2 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.3

2

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

3

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

2

In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.4 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence supporting such a causal relationship.5 The opinion of the physician
must be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature
of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant. This medical opinion must include an accurate history of the
employee’s employment injury and must explain how the condition is related to the injury. The
weight of medical evidence is determined by its reliability, its probative value, its convincing
quality, the care of analysis manifested, and the medical rationale expressed in support of the
physician’s opinion.6
ANALYSIS
OWCP accepted that the July 30, 2015 employment incident occurred as alleged. The
issue is whether appellant established that the incident caused her injuries. The Board finds that
she did not submit sufficient medical evidence to support that she sustained injuries causally
related to the July 30, 2015 employment incident.7
In support of her claim, appellant submitted an August 6, 2015 medical report from
Dr. Zakaria who reported that she had returned for a follow-up visit for an injury sustained on
July 30, 2015. Dr. Zakaria noted the context as a motor vehicle accident and diagnosed bilateral
thigh stiffness, cervical sprain/strain, and muscle spasm of neck. The Board finds that the
opinion of Dr. Zakaria is insufficiently rationalized. Dr. Zakaria failed to provide any details
pertaining to the July 30, 2015 employment incident other than generally noting that appellant
was involved in a motor vehicle accident. While she provided a firm medical diagnosis, she did
not discuss appellant’s employment and medical history and did not provide an opinion
regarding the cause of her conditions. Without an accurate history of injury, any opinion
pertaining to causal relationship is of limited probative value.8

4

Elaine Pendleton, supra note 2.

5

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

6

James Mack, 43 ECAB 321 (1991).

7

See Robert Broome, 55 ECAB 339 (2004).

8

John W. Montoya, 54 ECAB 306 (2003).

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Dr. Valdez’s August 14, 2015 report is also insufficient to establish appellant’s claim.
He failed to make any mention of the July 30, 2015 motor vehicle accident and provided no
opinion regarding the cause of appellant’s injury. Medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue
of causal relationship.9 As Dr. Zakaria and Dr. Valdez failed to provide a rationalized and
detailed discussion of appellant’s medical history, the employment incident, and cause of injury,
their reports are insufficient to meet appellant’s burden of proof.10
The remaining evidence of record is also insufficient to establish appellant’s claim as the
physician assistant’s work status reports were not signed by a physician. As registered nurses,
physical therapists, and physician assistants, are not considered physicians as defined under
FECA, their opinions are of no probative value.11
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference of causal relation.12 An award of compensation may not
be based on surmise, conjecture, speculation, or on the employee’s own belief of causal
relation.13 Appellant’s honest belief that the July 30, 2015 employment incident caused her
medical injury is not in question. But that belief, however sincerely held, does not constitute the
medical evidence necessary to establish causal relationship.
In the instant case, the record lacks rationalized medical evidence establishing a causal
relationship between the July 30, 2015 employment incident and appellant’s injury. Thus,
appellant has failed to meet her burden of proof.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an injury in the performance of duty on July 30, 2015.

9

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

10

S.W., Docket 08-2538 (issued May 21, 2009).

11

See Roy L. Humphrey, 57 ECAB 238 (2005). 5 U.S.C. § 8102(2) of FECA provides that the term “physician”
includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic
practitioners within the scope of their practice as defined by State law.
12

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

13

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

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated September 16, 2015 is affirmed.
Issued: February 24, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Washington, DC, Employer
__________________________________________

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

Docket No. 11-629
Issued: November 16, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 13, 2011 appellant filed a timely appeal from the August 4, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his claim for
schedule award compensation. Pursuant to the Federal Employees’ Compensation Act (FECA)1
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he has permanent
impairment entitling him to schedule award compensation.
FACTUAL HISTORY
OWCP accepted that on May 11, 2004 appellant, then a 34-year-old clerk, sustained a left
ankle strain when he tripped on mail trays and twisted his left ankle. He received OWCP
compensation for periods of disability.
1

20 C.F.R. § 8101 et seq.

In a July 5, 2006 report, Dr. Raymond D. Greaser, an attending Board-certified pain
management physician, indicated that physical examination showed decreased sensation in
appellant’s left leg. Motor function, deep tendon reflex and straight leg tests were deferred in
both legs. Dr. Greaser diagnosed chronic left ankle and foot pain status post trauma likely
consistent with a left lower extremity complex regional pain syndrome (CRPS). He obtained a
functional capacity evaluation on October 5, 2006 which found that appellant was unable to
perform any sedentary work due to reduced weight bearing of the left lower extremity, left foot
pain, immobilization of left foot/ankle and use of cane for all weight-bearing activities.
In a June 22, 2006 report, Dr. Kevin F. Hanley, a Board-certified orthopedic surgeon who
served as an OWCP referral physician, reported his findings on examination indicating that there
were no signs of a chronic pain syndrome such as reflex sympathetic dystrophy or CRPS in the
left lower extremity. The skin, blood flow and hair growth were normal and light touch did not
cause exquisite pain. Dr. Hanley indicated that he was able to put appellant’s left ankle through
a relatively normal range of motion. He diagnosed history of left ankle sprain and indicated that
appellant had no significant pathology in his left ankle.2 Dr. Hanley stated that appellant could
perform his regular work but recommended that he take a 30-minute and 15-minute break per
day.
OWCP determined that there was a conflict in the medical evidence between Dr. Greaser
and Dr. Hanley regarding the nature of appellant’s left ankle condition and the extent of his
disability. In order to resolve the conflict, appellant was referred to Dr. Wylie D. Lowery, Jr., a
Board-certified orthopedic surgeon, for an impartial medical examination and opinion on these
matters.
In a May 31, 2007 report, Dr. Lowery reported findings on examination and diagnosed
“[l]eft peroneal strain, foot and ankle sprain, medically probably related to the accident of
May 11, 2004, resolved,” and stated that appellant’s initial diagnosis of ankle sprain had resolved
as the type of injury he sustained would have been expected to resolve within a six-week period.3
He did not find any specific objective criteria to establish a diagnosis of reflex sympathetic
dystrophy or CRPS as there were no current clinical or radiographic findings to support these
diagnoses. Dr. Lowery indicated that specific recommendations for medical treatment would
include a current bone scan. He indicated that if the bone scan were negative, he would state that
appellant could return to his regular work full time.4
In a December 20, 2007 decision, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective December 13, 2007 on the grounds that he had no residuals of his
2

Dr. Hanley stated, “I believe a significant portion of his complaints presented to me today represent fabrication
and contrivance and do not represent true pathology.”
3

On physical examination of his legs, appellant had good dorsalis and posterior tibial pulses and sensation was
intact to light touch with good capillary refill. There was no skin abnormality, temperature differential between feet
and or hair loss.
4

On July 27, 2007 OWCP received a bone scan radiology report of the left foot/ankle, dated July 12, 2007,
containing the impression “presumed degenerative uptake of the first [metatarsophalangeal] joint of the left foot. No
other scintigraphic abnormality in either foot.”

2

May 11, 2004 employment injury after that date. It found that the weight of the medical
evidence with respect to this matter rested with the well-rationalized opinion of Dr. Lowery.
In an April 3, 2008 report, Dr. Abraham Asmamaw, an attending Board-certified physical
medicine and rehabilitation physician, found that appellant had an 18 percent permanent
impairment of his whole person under Chapter 17.2m on page 553 of the fifth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment. In a
May 20, 2008 report, Dr. Asmamaw determined that appellant had an 18 percent permanent
impairment of his left leg due under Chapter 17.2m.5
OWCP determined that a June 26, 2008 report of an OWCP medical adviser created a
conflict in the medical evidence with the opinion of Dr. Asmamaw regarding appellant’s left leg
impairment and referred appellant to Dr. David C. Johnson, a Board-certified orthopedic
surgeon, for an impartial medical examination and opinion on the matter. In an August 20, 2008
report, Dr. Johnson indicated that the examination of appellant’s left leg was normal and
determined that he had no impairment of his left leg under the standards of the fifth edition of the
A.M.A., Guides.
In a February 23, 2009 decision, OWCP denied appellant’s schedule award claim finding
that the weight of the medical opinion with respect to this matter rested with the wellrationalized opinion of Dr. Johnson.
In an April 12, 2009 report, Dr. Amy Traylor, an attending Board-certified neurologist,
described appellant’s medical condition and diagnosed CRPS, type 1, involving the left leg and
ankle. She did not provide any opinion on the permanent impairment of appellant’s left leg.
In a July 10, 2009 decision, OWCP denied appellant’s schedule award claim noting that
Dr. Traylor did not provide any opinion on the permanent impairment of appellant’s left leg in
her April 12, 2009 report.
In a September 15, 2009 report, Dr. Traylor stated that appellant was under her care for
reflex sympathetic dystrophy/causalgia (CRPS, type 1) “involving the left leg and ankle on
May 11, 2004” and ankle internal derangement. She indicated that appellant had reached
maximum medical improvement and applied the standards of the fifth edition of the A.M.A.,
Guides. Dr. Traylor determined that under Chapter 17.2m on page 553 (concerning reflex
sympathetic dystrophy and CRPS) and Table 13-15 on page 336 (concerning gait derangement)
appellant had an 18 percent permanent impairment of his left leg. She stated that appellant’s
subjective complaints were constant pain radiating to the left leg, difficulty with ambulation and
gait unsteadiness, swelling of his left ankle/foot, weakness of his left foot and left leg, pain on
weight bearing, required use of a cane for ambulation and loss of range of active motion.
In a February 25, 2010 decision, OWCP denied appellant’s schedule award claim finding
that the September 15, 2009 report of Dr. Traylor had little probative value with respect to
appellant’s claimed left leg impairment.

5

On March 7, 2008 appellant filed a claim for a schedule award.

3

In an April 29, 2010 report, Dr. Traylor stated that appellant was under her care for reflex
sympathetic dystrophy and CRPS, type 1, involving the left leg, left foot and the left ankle
following a work-related injury while he was working as a postal clerk.6 She stated that it was
well established at that time and as an ongoing determination supported by OWCP that appellant
has been permanently injured from this work-related injury that occurred on May 11, 2004.
Dr. Traylor indicated that the condition of reflex sympathetic dystrophy, otherwise known as
CRPS, type 1, was by its very nature permanent and progressive and unchanging in its signs and
symptoms. She stated, “Therefore, the presence of this condition itself has been well established
as permanent in the medical community as well as permanent in [appellant].” Dr. Traylor noted
that the date of appellant’s maximal medical improvement was May 20, 2008 and stated:
“[Appellant’s] impairment rating using [the fifth edition of the A.M.A., Guides],
Chapter 17.25, pg 553 Causalgia (CRPS, type 1) because of ankle/foot injury
resulted [sic] the left lower limbs has been rated using station/gait impairment,
Chapter 13.5 and Table 13-15 with a rating of 18 percent impairment.
[Appellant’s] impairment as consistent with CRPS, type 1, is presented in Table
16-16 and he suffers from marked decrease of active range of motion in his left
ankle, left foot and his left leg as 18 percent from Figure 16-28 and the
sensory/pain deficit as 65 percent (Table 16-10, grade 26 to 80 percent).
Combining 18 percent [range of motion] and 65 percent sensory/pain [impairment
rating] = 71 percent lower extremity = 43 percent whole person impairment.”
In an August 4, 2010 decision, OWCP affirmed its February 25, 2010 decision finding
that appellant had not established that he had permanent impairment entitling him to schedule
award compensation.
LEGAL PRECEDENT
An employee seeking compensation under FECA7 has the burden of establishing the
essential elements of his claim, including that he sustained an injury in the performance of duty
as alleged and that an employment injury contributed to the permanent impairment for which
schedule award compensation is alleged.8 The medical evidence required to establish a causal
relationship is rationalized medical opinion evidence. The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty and must be supported by medical rationale explaining the nature of the

6

Dr. Traylor stated that appellant’s subjective complaints were constant pain radiating to the left leg, difficulty
with ambulation and gait unsteadiness, swelling of the left ankle/foot, weakness of his left foot, left ankle, and left
leg, marked pain on weight bearing that requires a cane for ambulation, and loss of range of active motion in his left
foot, ankle and leg.
7

5 U.S.C. §§ 8101-8193.

8

See Bobbie F. Cowart, 55 ECAB 476 (2004). In Cowart, the employee claimed entitlement to a schedule award
for permanent impairment of her left ear due to employment-related hearing loss. The Board determined that
appellant did not establish that an employment-related condition contributed to her hearing loss and, therefore, it
denied her claim for entitlement to a schedule award for the left ear.

4

relationship between the diagnosed condition and the specific employment factors identified by
the claimant.9
The schedule award provision of FECA10 and its implementing regulations11 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The American Medical Association, Guides to the Evaluation of Permanent
Impairment has been adopted by the implementing regulations as the appropriate standard for
evaluating schedule losses.12 The effective date of the sixth edition of the A.M.A., Guides is
May 1, 2009.13
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”14 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of FECA, to resolve the conflict in the medical
evidence.15 In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving the
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.16
ANALYSIS
OWCP accepted that on the August 4, 2010 appellant sustained a left ankle strain. He
claimed entitlement to schedule award compensation but OWCP denied his claim finding that he
did not submit a rationalized medical report showing that he had permanent impairment entitling
him to schedule award compensation.
The Board finds that appellant did not submit sufficient medical evidence to establish that
he has permanent impairment entitling him to schedule award compensation.
9

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

10

5 U.S.C. § 8107.

11

20 C.F.R. § 10.404 (1999).

12

Id.

13

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

14

5 U.S.C. § 8123(a).

15

William C. Bush, 40 ECAB 1064, 1975 (1989).

16

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

5

In a September 15, 2009 report, Dr. Traylor, an attending Board-certified neurologist,
stated that appellant was under her care for reflex sympathetic dystrophy/causalgia (CRPS, type
1) “involving the left leg and ankle on May 11, 2004” and ankle internal derangement. She
indicated that appellant had reached maximum medical improvement and applied the standards
of the fifth edition of the A.M.A., Guides. Dr. Traylor determined that under Chapter 17.2m on
page 553 (concerning reflex sympathetic dystrophy and CRPS) and Table 13-15 on page 336
(concerning gait derangement) that appellant had an 18 percent permanent impairment of his left
leg. She stated that appellant had subjective complaints in his left leg and ankle in the form of
pain and weakness.
The Board finds that the September 15, 2009 impairment rating of Dr. Traylor is of
limited probative value regarding the permanent impairment of appellant’s left leg. Dr. Traylor
provided an opinion on appellant’s left leg impairment using the standards of the fifth edition of
the A.M.A., Guides. However, the sixth edition of the A.M.A., Guides was in effect at the time
the report was produced and the time that OWCP evaluated the report in its February 25, 2010
decision denying appellant’s schedule award claim.17 In addition, Dr. Traylor based her
impairment rating of 18 percent permanent impairment on her belief that appellant suffered
reflex sympathetic dystrophy, causalgia and/or CRPS due to his May 11, 2004 employment
injury. Appellant’s claim was only accepted for a left ankle strain and Dr. Traylor did not
provide a rationalized medical opinion, with a complete medical history including physical
examination and diagnostic testing findings, explaining how appellant could have sustained
reflex sympathetic dystrophy, causalgia and/or CRPS on May 11, 2004. In fact, the record
contains evidence showing that appellant not have such a condition after his May 11, 2004
employment injury.18 Moreover, Dr. Traylor did not provide any description of objective
findings and she appears to have based her calculations on appellant’s reported subjective
findings, nor did she explain the particular manner in which she applied the standards of the
referenced chapters and tables of the A.M.A., Guides.
Appellant also submitted an April 29, 2010 report in which Dr. Traylor determined that
he has a 71 percent permanent impairment of his left leg, comprised of the above-described 18
percent impairment combined (using the Combined Values Chart on page 604) with a 65 percent
rating for sensory loss/pain derived from Table 16-10 on page 482. This report of Dr. Traylor
contains many of the defects of her September 15, 2009 report. She again applied the standards
of the fifth edition of the A.M.A., Guides at a time when the standards of the sixth edition were
in effect. Dr. Traylor’s impairment rating is based on the unsupported belief that appellant had
reflex sympathetic dystrophy and/or CRPS due to his May 11, 2004 employment injury. She
indicated that the condition of reflex sympathetic dystrophy, otherwise known as CRPS, was by
its very nature permanent and progressive and unchanging in its signs and symptoms and stated,
“Therefore, the presence of this condition itself has been well established as permanent in the
17

See supra note 13.

18

In a May 31, 2007 report, Dr. Lowery, a Board-certified orthopedic surgeon serving as an impartial medical
specialist, stated that he did not find any specific objective criteria to establish a diagnosis of reflex sympathetic
dystrophy or CRPS as there were no current clinical or radiographic findings to support these diagnoses. It should
be noted that OWCP relied on this report to terminate appellant’s compensation effective December 13, 2007 on the
grounds that he ceased to have residuals of his May 11, 2004 employment injury after that date.

6

medical community as well as permanent in [appellant].” However, Dr. Traylor did not provide
any detailed explanation, including a complete medical history and objective findings, to support
such an opinion.19 Moreover, she did not provide a rationalized opinion explaining how her
finding of a 65 percent rating for sensory loss/pain was related to impairment from appellant’s
May 11, 2004 employment injury, accepted for a left ankle strain. Dr. Traylor referenced Table
16-10 on page 482 with respect to this deficit but she did not identify any particular nerve root
causing peripheral nerve disorder as required by this table. In her April 29, 2010 report, she
again appears to have based her opinion on appellant’s subjective rather than objective factors.20
For these reasons, appellant did not submit medical evidence showing that he has
permanent impairment entitling him to schedule award compensation and OWCP properly
denied his claim. He may request a schedule award based on evidence of a new exposure or
medical evidence showing progression of an employment-related condition resulting in
permanent impairment.
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 that he has
permanent impairment entitling him to schedule award compensation.

19

Dr. Traylor improperly stated that OWCP had accepted that appellant had been permanently injured by his
May 11, 2004 employment injury.
20

The record also contains an April 3, 2008 report in which Dr. Asmamaw, an attending Board-certified physical
medicine and rehabilitation physician, found that appellant had an 18 percent permanent impairment of his whole
person under Chapter 17.2m on page 553 of the fifth edition of the A.M.A., Guides. In a May 20, 2008 report,
Dr. Asmamaw determined that appellant had an 18 percent permanent impairment of his left leg due under Chapter
17.2m. These reports have many of the same defects as those of Dr. Traylor, including the improper assumption that
appellant had work-related reflex sympathetic dystrophy or CRPS. In addition, the Board has held that a schedule
award is not payable under section 8107 of FECA for an impairment of the whole person. See Gordon G. McNeill, 42
ECAB 140, 145 (1990).

7

ORDER
IT IS HEREBY ORDERED THAT the August 4, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 16, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Mooresville, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-0556
Issued: December 6, 2018

Case Submitted on the Record

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

JURISDICTION
On January 19, 2018 appellant filed a timely appeal from an August 18, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $2,141.43 for the period May 29, 2016 through
May 27, 2017, and if so; (2) whether OWCP properly determined that she was at fault in creation
of the overpayment and ineligible for waiver of recovery; and (3) whether OWCP properly
required waiver of recovery by withholding $45.42 every 28 days from appellant’s continuing
compensation.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 28, 2013 appellant, then a 31-year-old rural carrier associate, filed a traumatic
injury claim (Form CA-1) alleging numbness in the left arm and leg on October 18, 2013 when
her postal vehicle was struck by a personal vehicle while in the performance of duty. She stopped
work on the date of the injury. OWCP accepted appellant’s claim for sprain of the back, lumbar
region, and sprain of neck. Appellant began receiving wage-loss compensation for temporary total
disability on December 3, 2013. OWCP later expanded the acceptance of the claim to include a
lumbar disc protrusion at L5-S1.
By letter dated February 18, 2014, OWCP informed appellant that she would be paid
disability compensation on the periodic rolls every 28 days and advised her about the effect of
dependency on her receipt of compensation by noting:
“CHANGE IN STATUS OF DEPENDENT. If you have one or more dependents,
and the status of any dependent changes, notify the OWCP at the address shown on
the front of this letter. In the letter, include your file number, the name of the
dependent whose status changed, the effective date of the change, and the nature of
the change in status. Your signature must appear on the letter.
“If you claimed only one dependent, DO NOT CASH CHECKS RECEIVED
AFTER THE CHANGE IN STATUS of this dependent. Otherwise, an
overpayment of compensation may result. Return the checks promptly to this
office.”
Appellant completed CA-1032 and EN1032 forms on June 4, 2014, June 20, 2015,
June 23, 2016, and June 20, 2017. The EN1032 forms provided information notifying her as to
the status of dependents for augmented compensation. Appellant was advised as to the
requirements for claiming a spouse as a dependent and informed that a claimant with no
dependents was paid at the 66 2/3 percent basic rate, not the 75 percent augmented rate. On
EN1032 forms completed on June 4, 2014 and June 20, 2015, under “Part C-Dependents,” she
indicated that her status was married and that she was not claiming “compensation on account of
other dependents, such as children.” These forms contained text which advised appellant that a
claimant who has no eligible dependents is paid compensation at 66 2/3 percent of the applicable
pay rate and that a claimant who has one or more eligible dependents is paid compensation at 75
percent of the applicable pay rate. Appellant could claim augmented compensation for a dependent
if she had one or more of the following: (a) a spouse (including a same sex spouse) who lived
with her; (b) an unmarried child, including an adopted child or stepchild, who lived with her and
was under 18 years old; (c) an unmarried child who was 18 years old or over, but who cannot
support himself or herself because of mental or physical disability; (d) an unmarried child under
23 years old who was a full-time student and had not completed four years of school beyond the
high school level; or (e) a parent who totally depended upon her for support.
In a Form EN1032 completed on June 23, 2016, appellant advised OWCP that she was
married, but not living with or supporting her husband. In a Form CA-1032 completed on June 20,

2

2017, she indicated that she had stopped living with and supporting her husband since May 2016.
Appellant noted that her husband stopped being a dependent as they had “separated.”
On June 30, 2017 OWCP issued a preliminary determination that appellant received an
overpayment of compensation in the amount of $2,141.43 because she received payment at the
augmented rate, but should have been paid at the statutory rate. It found that she was not entitled
to compensation at the 75 percent augmented rate from May 29, 2016 through May 27, 2017.
Appellant was at fault in the creation of the overpayment as she was not entitled to augmented
compensation because her marital status and living arrangements did not meet the criteria for threefourths compensation. In an accompanying memorandum, OWCP explained how it arrived at the
amount of the overpayment.2 It sent appellant instructions for appealing the overpayment or to
request waiver of recovery, together with financial forms.
Appellant responded to the preliminary determination by completing the overpayment
recovery questionnaire (Form OWCP-20) and requested a telephone conference, which was held
on July 27, 2017. She listed expenses of $1,320.00 and assets of $1,100.00. During the
conference, appellant argued that she was unfamiliar with the rules, as she was new to the country
and only lived here for about five years. She stated that she was unaware that the compensation
rate was to be reduced due to no dependents and if she had been aware, she would certainly have
discussed the matter with her claims examiner. Appellant also indicated that her husband ceased
living with her on May 29, 2016.
OWCP’s claims examiner reviewed appellant’s expenses and noted that she was receiving
OWCP benefits in the amount of $1,333.00 every 28 days or $1,444.08 per month. He confirmed
that appellant had no other income and appellant confirmed this monthly amount. Regarding
expenses, the claims examiner found that she had the following expenses: food, $350.00; rent,
$650.00; electricity/gas, $120.00; telephone, $30.00; other, $200.00 (total-$1352.00) (Income of
$1,444.08 -$1352.00=$92.08). He asked appellant to advise him of her transportation expenses,
which she did not have at the time of the hearing. The claims examiner further noted that she had
a Discover card with a balance of $3,500.00 and a monthly payment of $79.00 and a bill for a
biopsy in the amount of $700.00 dollars and a $47.00 dollar physician charge. He also explained
that additional documentation was needed to support her expense claims and afforded appellant an
additional 15 days to submit the documentation.
On August 7, 2017 OWCP received documentation from appellant regarding her expenses,
which were generally in alignment with the expenses she noted from the telephone conference. A
small discrepancy was noted with regard to her food expenses as the receipts totaled approximately
$200.00 per month as opposed to $350.00 per month. Appellant’s transportation expenses
included rides costing $6.53, $12.03, and $11.14.

2

OWCP noted that appellant’s gross compensation for the period May 29, 2016 (the date appellant’s spouse ceased
to be an eligible dependent) through May 27, 2017, the difference between payment of compensation at a 3/4 rate
($19,214.15) and the 2/3 rate ($17,072.72) was $2,141.43 ($19,214.15 minus $17,072.72). It found that the total
amount of the overpayment was $2,141.43.

3

By decision dated August 18, 2017, OWCP finalized the overpayment of compensation in
the amount of $2,141.43, for which it found appellant was at fault in the creation and not eligible
for waiver of recovery of the overpayment. It explained that CA-1032 forms which appellant
completed on June 4, 2014, June 20, 2015, June 23, 2016 and June 20, 2017, clearly explained the
rates of compensation based upon qualified dependents. OWCP explained that the benefits
statements issued for each periodic rolls payment clearly indicated the rate at which compensation
was paid. It concluded that appellant should have reasonably been aware that the compensation
she received after May 29, 2016 was incorrect. OWCP found that the findings of overpayment
and fault were correct. It indicated that they would deduct $45.42 from future compensation
payments. OWCP found that appellant had not provided information to refute the amount of the
overpayment or the finding of fault. It found that the evidence of record supported a final decision
of overpayment with fault because she knowingly accepted wage-loss compensation to which she
was not entitled.
LEGAL PRECEDENT -- ISSUE 1
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
FECA provides that the United States shall pay compensation for disability or death of an
employee resulting from personal injury sustained while in the performance of duty.4 If the
disability is total, the United States shall pay the employee monthly monetary compensation for
total disability.5 Under section 8110 of FECA, an employee is entitled to compensation at the
augmented rate of three-fourths of his or her weekly pay if he or she has one or more dependents.6
If a claimant receives augmented compensation during a period when he or she has no eligible
dependents, the difference between the compensation he or she was entitled to receive at the twothirds compensation rate and the augmented compensation received at the three-fourths rate
constitutes an overpayment of compensation.7
A husband is considered an employee’s dependent if he is a member of the same household,
is receiving regular contributions from the employee for his support or if the employee has been
ordered by a court to contribute to his support.8 In determining dependency under FECA, the
decisive test is whether the person for whom benefits are claimed as a dependent of the employee,

3

5 U.S.C. § 8129

4

Id. at § 8102(a).

5

Id. at § 8105(a); see also Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

6

Id. at § 8110.

7

See Diana L. Booth, 52 ECAB 370 (2001) (the Board held that the claimant received an overpayment because she
received compensation at the augmented rate during a period when she had no dependents following her divorce).
8

5 U.S.C. § 8110(a)(2).

4

in fact, looked to and relied, in whole or in part, upon the contributions given by the employee as
a means of maintaining or helping to maintain a customary standard of living.9
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation for the period
from May 29, 2016 through May 27, 2017. The evidence establishes that she received wage-loss
compensation at the 75 percent augmented rate for employees with dependents during this period.
In a Form EN1032 completed on June 23, 2016, appellant advised OWCP that she was married,
but not living with or supporting her husband. In a CA-1032 completed on June 20, 2017, she
indicated that, since May 2016, she stopped living with and supporting her husband because they
were separated. During the telephone conference she explained that she stopped living with him
on May 29, 2016. The Board finds that, as none of the three individual criteria for a dependent
under 5 U.S.C. § 8110(a)(2) may be applied in appellant’s circumstances, she was not entitled to
augmented compensation after May 29, 2016. OWCP provided a detailed accounting of the
amount of compensation she should have received at the basic 66 2/3 percent rate ($17,072.72),
since there were no qualified dependents, versus the amount she actually received under the
augmented compensation rate of 75 percent ($19,214.15). The Board finds that OWCP’s
calculation of a $2,141.43 overpayment was correct.10 Accordingly, OWCP properly determined
the fact and amount of the overpayment.
LEGAL PRECEDENT -- ISSUE 2
Section 10.433 of the implementing regulations specifically provides that OWCP may
consider waiving an overpayment if the individual to whom it was made was without fault in
accepting or creating the overpayment.11 On the issue of fault, 20 C.F.R. § 10.433(a) provides that
an individual will be found at fault if he or she has done any of the following: (1) made an incorrect
statement as to a material fact which he or she knew or should have known to be incorrect;
(2) failed to provide information which he or she knew or should have known to be material; or
(3) accepted a payment which he or she knew or should have known was incorrect.
The regulations further provide that each recipient of compensation benefits is responsible
to ensure that payments he or she receives from OWCP are proper.12 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.13
For OWCP to establish that a claimant was at fault in the creation of the overpayment, it
must show that, when he or she received the compensation in question, he or she knew or should
9

See Nancy J. Masterson, 52 ECAB 507 (2001); Helyn E. Girmann, 11 ECAB 557 (1960).

10

See supra note 3.

11

Id. at § 10.433(a).

12

Id.

13

Id. at § 10.433(b).

5

have known that the payment was incorrect.14 With respect to whether an individual is with fault,
section 10.433(b) of OWCP’s regulations provide that whether or not OWCP determines that an
individual was with fault with respect to the receipt 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 was being
overpaid.15
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly determined that appellant was at fault in the creation
of the overpayment of compensation for the period May 29, 2016 through May 27, 2017. The CA1032 and EN1032 forms advised appellant as to who qualifies as a dependent for purposes of
augmented compensation. Additionally, by letter dated February 18, 2014, OWCP outlined
appellant’s entitlement to compensation benefits and her responsibility to return to work in
connection with the injury. It explained what would happen if there was a change in the status of
her dependents. For example, appellant was advised to notify OWCP at the address shown on the
front of their letter; include her file number, the name of the dependent whose status changed, the
effective date of the change, the nature of the change in status and her signature. Furthermore, she
was advised that if she claimed only one dependent, she must not cash checks received after the
change in status of the dependent; otherwise, an overpayment of compensation may result. OWCP
indicated that appellant must return the checks promptly. Additionally, appellant was advised as
to the requirements for claiming a spouse as a dependent and informed that a claimant with no
dependents was paid at the 66 2/3 percent basic rate, not the 75 percent augmented rate.
The evidence establishes that, when placed on compensation, appellant was married and
she received compensation at the augmented 75 percent augmented rate. The Board finds that,
when she ceased living with her husband, she should have received compensation at the 66 2/3
percent basic rate and that she knew or reasonably should have known that the 75 percent augment
rate of compensation she was receiving was incorrect. The Board notes that OWCP informed
appellant on February 18, 2014 and on an annual basis as to her receipt of compensation and the
basis on which dependents were determined. The record reflects that she initially asked for the
increased rate when she was married. Therefore, appellant received compensation at the 75 percent
augmented rate for approximately three years after. After her separation from her husband, she
knew or should have known that the payments made at the augmented rates were incorrect. When
appellant continued to accept the compensation payments based on 75 percent of her pay rate, she
accepted payments she knew or should have known were incorrect.16 The Board finds that
appellant is at fault in the creation of the overpayment and therefore not eligible for waiver of
recovery. OWCP is required by law to recover the overpayment.

14

See Otha J. Brown, 56 ECAB 228 (2004); Karen K. Dixon, 56 ECAB 145 (2004).

15

20 C.F.R. § 10.433(b).

16

See for example, G.M., Docket No. 15-0939 (issued April 13, 2016) (Form EN1032 provided information
regarding dependents and appellant should have known he could not receive augmented compensation after his
daughter’s 18th birthday).

6

LEGAL PRECEDENT -- ISSUE 3
When an overpayment has been made to an individual because of an error of fact or law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which the individual is entitled.17 20 C.F.R. § 10.441 provides:
“Whenever an overpayment has been made to an individual who is entitled to
further payments, the individual shall refund to OWCP the amount of the
overpayment as soon as the error is discovered or his or her attention is called to
same. If no refund is made, OWCP shall decrease later payments of compensation,
taking into account the probable extent of future payments, the rate of
compensation, the financial circumstances of the individual, and other relevant
factors, so as to minimize any hardship.18”
ANALYSIS -- ISSUE 3
The Board finds that OWCP gave due regard to the financial information appellant
submitted as well as the factors set forth in section 10.441.19 As appellant’s monthly income was
$1,444.08 and her monthly expenses were $1,352.00, OWCP did not abuse its discretion in
requiring recovery by deducting $45.42 every 28 days from each of her continuing compensation
payments. The Board finds that OWCP properly required recovery of the overpayment in this
case.20
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $2,141.43 for the period May 29, 2016 through May 27, 2017.
The Board also finds that OWCP properly determined that she was at fault in creation of the
overpayment and ineligible for waiver of recovery of the overpayment. Additionally, the Board
further finds that OWCP properly required recovery of the overpayment by deducting $45.42 from
appellant’s continuing compensation payments.

17

5 U.S.C. § 8129(a).

18

20 C.F.R. § 10.441.

19

Id.

20

See T.M., Docket No. 17-1482 (issued May 4, 2018).

7

ORDER
IT IS HEREBY ORDERED THAT the August 18, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 6, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Q.J., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Oakland, CA, Employer
__________________________________________
Appearances:
Marta R. Vanegas, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 20-0299
Issued: July 30, 2021

Case Submitted on the Record

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

On November 25, 2019 appellant, through counsel, sought an appeal from a purported
November 12, 2019 decision of the Office of Workers’ Compensation Programs (OWCP). The
Clerk of the Appellate Boards assigned Docket No. 20-0299.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act.2
For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s review
authority is limited to appeals which are filed within 180 days from the date of issuance of OWCP’s
decision.3
1

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

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

3

20 C.F.R. § 501.3(e) (2009).

There is no final adverse decision of OWCP dated November 12, 2019 contained in the
case record as transmitted to the Board. The last final adverse decision of record was a March 26,
2019 final overpayment decision finding an overpayment in the amount of $33,591.34, for which
appellant was without fault. The 180th day following the March 26, 2019 decision was
September 22, 2019. As appellant did not file an appeal with the Board until November 25, 2019,
more than 180 days after the March 26, 2019 OWCP decision, the Board finds that the appeal
docketed as No. 20-0299 is untimely filed. The Board is without jurisdiction to review the appeal.
Appellant has not offered a reason to explain her failure to timely file an appeal from the
March 26, 2019 decision with supporting documentation sufficient to establish compelling
circumstances. Because there is no adverse final decision issued by OWCP within 180 days of the
November 25, 2019 filing of the instant appeal, the Board concludes that the appeal docketed as
No. 20-0299 must be dismissed.4 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 20-0299 is dismissed.
Issued: July 30, 2021
Washington, DC

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

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

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

4
The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.”
20 C.F.R. § 501.6(d).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baltimore, MD, Employer
__________________________________________

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

Docket No. 21-0610
Issued: October 19, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On March 1, 2021 appellant filed a timely appeal from a February 10, 2021 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 2
ISSUE
The issue is whether OWCP properly suspended appellant’s compensation benefits,
effective February 23, 2021, for failure to complete an EN1032 form as requested.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the February 10, 2021 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On December 31, 1998 appellant, then a 54-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 16, 1998 she was injured in the performance of
duty. OWCP accepted the claim for sprain of lumbosacral joint and ligament. The record reflects
that OWCP paid appellant wage-loss compensation on the periodic rolls as of October 6, 2002.
OWCP periodically requested that appellant submit financial disclosure statements (Form
CA-1032), which solicited information about her employment, volunteer work, dependent(s)
status, receipt of other federal benefits and/or payments, and third-party settlements if any, within
the past 15 months.
On December 15, 2020 OWCP informed appellant that federal regulations required her to
execute an affidavit regarding any earnings received or employment performed during the previous
15 months and that an EN1032 form was enclosed for that purpose. It advised that she had to
completely answer all questions on the form and that her benefits would be suspended pursuant to
20 C.F.R. § 10.528 if a completed form was not received by OWCP within 30 days. OWCP mailed
the letter to appellant’s last known address of record. No response was received.
By decision dated February 10, 2021, OWCP suspended appellant’s wage-loss
compensation, effective February 23, 2021, for failing to submit the EN1032 form as requested.
It advised that, if she completed and returned an enclosed copy of the EN1032 form, it would
restore her wage-loss compensation retroactively to the date of suspension.
LEGAL PRECEDENT
Section 8106(b) of FECA authorizes the Secretary of Labor to require a partially disabled
employee to report his or her earnings from employment or self -employment, by affidavit or
otherwise, in the manner and at the times the Secretary specifies. 3
Under section 10.528 of OWCP’s implementing federal regulations, an employee in receipt
of compensation benefits must complete an affidavit as to any work or activity indicating an ability
to work which the employee has performed for the prior 15 months. 4 If an employee who is
required to file such a report fails to do so within 30 days of the date of the request, his or her right
to compensation for wage loss is suspended until OWCP receives the requested report. At that
time, OWCP will reinstate compensation retroactively to the date of suspension if the employee
remains entitled to compensation.5

3

5 U.S.C. § 8106(b).

4

20 C.F.R. § 10.528. See also R.B., Docket No. 20-0176 (issued June 25, 2020); A.H., Docket No. 15-0241 (issued
April 3, 2015).
5

Id. See also J.M., Docket No. 20-1310 (issued April 21, 2021); P.M., Docket No. 16-0382 (issued May 19, 2016).

2

ANALYSIS
The Board finds that OWCP properly suspended appellant’s wage-loss compensation
benefits, effective February 23, 2021, due to her failure to complete an EN1032 form as requested.
On December 15, 2020 OWCP provided appellant with the EN1032 form and notified her
that federal regulations required her to complete the form and answer all questions concerning her
employment or earnings. It properly notified her that, if she did not completely answer all
questions and return the form within 30 days, her benefits would be suspended. The record reflects
that OWCP’s letter was sent to appellant’s last known address of record and there is no indication
that it was returned as undeliverable.6 Under the mailbox rule, a document mailed in the ordinary
course of the sender’s business practices to the addressee’s last known address is presumed to be
received by the addressee.7
Appellant failed to timely submit an EN1032 form within 30 days of OWCP’s request. She
was receiving wage-loss compensation and was, therefore, required to fully complete and submit
the EN1032 form in a timely manner. 8 Appellant’s failure to file an EN1032 form within 30 days
properly resulted in the suspension of her wage-loss compensation. Thus, the Board finds that
OWCP properly suspended her wage-loss compensation benefits, effective February 23, 2021,
pursuant to 20 C.F.R. § 10.528 and informed her that wage-loss benefits would be retroactively
reinstated when the EN1032 form was received.9
CONCLUSION
The Board finds that OWCP properly suspended appellant’s wage-loss compensation
benefits, effective February 23, 2021, for failure to submit a completed EN1032 form as requested.

6

See J.H., Docket No. 20-0785 (issued October 23, 2020); Kenneth E. Harris, 54 ECAB 502 (2003).

7

Id.

8

See R.S., Docket No. 20-0580 (issued September 14, 2020); A.S., Docket No. 17-1530 (issued November 7, 2017).

9

See R.B., supra note 4; P.M., supra note 5; M.W., Docket No. 15-0507 (issued June 18, 2015).

3

ORDER
IT IS HEREBY ORDERED THAT the February 10, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 19, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tulsa, OK, Employer
__________________________________________

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

Docket No. 15-0532
Issued: May 4, 2017

Case Submitted on the Record

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

JURISDICTION
On January 20, 2015 appellant filed a timely appeal from a July 31, 2014 merit decision
and a December 17, 2014 nonmerit 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 appellant has more than 60 percent permanent impairment of
the left lower extremity, for which she has previously received a schedule award; and
(2) whether OWCP properly denied appellant’s request for an oral hearing as untimely filed
pursuant to 5 U.S.C. § 8124.
1
2

5 U.S.C. § 8101 et seq.

Appellant submitted a timely request for oral argument pursuant to 20 C.F.R. § 501.5(b). After exercising its
discretion pursuant to 20 C.F.R. § 501.5(a), the Board, by order dated May 4, 2016, denied appellant’s request
because it could adequately address appellant’s contentions based on a review of the case record. Order Denying
Request for Oral Argument, Docket No. 15-0531 (issued May 4, 2016).

FACTUAL HISTORY
This case has previously been before the Board.3 The facts of the case as set forth in the
Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.
On October 15, 2004 appellant, then a 56-year-old distribution clerk, filed an
occupational disease claim (Form CA-2) alleging that she sustained injuries to her back, hip, and
knees as a result of her federal employment duties. Her supervisor noted on the claim form that
appellant had performed limited duty since July 6, 2004. Appellant did not stop work. OWCP
accepted the claim for bilateral sprain of the lateral collateral ligament (LCL), lumbar sprain,
bilateral meniscus tears, right lower extremity osteoarthritis, bilateral shoulder arthropathy, and
bilateral rheumatoid arthritis. On March 15, 2006 appellant underwent accepted left knee
arthroscopic surgery.
OWCP received appellant’s request for a schedule award (Form CA-7) on June 29, 2006.
In a report dated July 13, 2006, appellant’s treating physician, Dr. James C. Mayoza, an
orthopedic surgeon, reported that appellant had reached maximum medical improvement (MMI).
He opined that appellant had 40 percent permanent impairment of her right knee and 25 percent
permanent impairment of her left knee.
OWCP referred appellant to Dr. Timothy Pettingell, a Board-certified physiatrist, for a
second opinion examination to determine the extent of appellant’s permanent impairment. In a
report dated November 1, 2006, Dr. Pettingell opined that appellant had 22 percent lower
extremity permanent impairment on the right and 12 percent left lower extremity permanent
impairment under the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides).4
In a report dated December 19, 2006, an OWCP medical adviser opined that under the
sixth edition of the A.M.A., Guides appellant had 20 percent left lower extremity permanent
impairment and 10 percent right lower extremity permanent impairment based on loss of knee
range of motion.
By decision dated February 13, 2007, OWCP issued a schedule award for 20 percent
permanent impairment of the left lower extremity and 10 percent permanent impairment of the
right lower extremity. The period of the award was 86.40 weeks commencing July 13, 2006.
Appellant underwent right knee total arthroplasty surgery on June 25, 2008. In a report
dated April 22, 2009, Dr. J. Arden Blough, a Board-certified family practitioner, provided results
on examination. He opined that under the sixth edition of the A.M.A., Guides,5 appellant had 59
percent right lower extremity permanent impairment due to the total knee replacement surgery.
Dr. Blough also found that appellant had two percent left lower extremity permanent impairment
3

Docket No. 13-1220 (issued November 22, 2013).

4

5th ed. 2000.

5

6th ed. 2009.

2

due to a torn meniscus, and two percent whole person impairment due to recurrent low back pain
with radicular symptoms.
In a report dated August 13, 2009, an OWCP medical adviser opined that appellant had
59 percent right lower extremity permanent impairment due to the total knee arthroplasty, and 2
percent right lower extremity permanent impairment from the lumbar injury. As to the left lower
extremity, he found 2 percent impairment for the meniscectomy, which was less than the 10
percent previously awarded. The medical adviser found that appellant did have an additional
two percent left lower extremity permanent impairment based on the lumbar spine injury.
By decision dated September 15, 2009, OWCP issued a schedule award for an additional
50 percent permanent impairment of the right lower extremity and 2 percent permanent
impairment of the left lower extremity. The period of the award was 149.76 weeks of
compensation commencing April 22, 2009.
Appellant underwent additional left knee arthroscopic surgery on February 5, 2010. In a
report dated May 28, 2010, Dr. M. Stephen Wilson, an orthopedic surgeon, opined that appellant
had 37 percent left lower extremity permanent impairment due to her knee injury.
OWCP subsequently referred appellant to Dr. Michael Smith, a Board-certified
physiatrist, for a second opinion examination. In a report dated January 4, 2011, Dr. Smith
opined that appellant had 59 percent right lower extremity permanent impairment based on the
right knee surgeries, and 22 percent permanent impairment to the left lower extremity based on
the left knee.
In a report dated July 8, 2011, Dr. Wilson opined that appellant had 59 percent permanent
impairment to both her right and left lower extremities based on her bilateral knee conditions.
By report dated July 28, 2011, an OWCP medical adviser found that appellant had not reached
maximum medical improvement with respect to the left lower extremity.6
By report dated February 10, 2012, Dr. Wilson again opined that appellant had 59 percent
permanent impairment to each lower extremity based on the A.M.A., Guides. In a report dated
March 6, 2012, an OWCP medical adviser reviewed Dr. Wilson’s report. He concurred that
appellant had 59 percent bilateral lower extremity permanent impairment. For the right lower
extremity, the medical adviser found that appellant was not entitled to an additional award. For
the left lower extremity, he noted that appellant had previously received 20 percent due to the
left knee, and 2 percent from the lumbar spine injury. The medical adviser found that 59 minus
20 was 39 percent. He then combined 2 percent with 39 percent under the Combined Values
Chart in the A.M.A., Guides, for a total of 40 percent impairment. The medical adviser then
subtracted 2 percent, and opined that appellant had an additional 38 percent permanent
impairment of the left lower extremity.
By decision dated April 11, 2012, OWCP issued a schedule award for an additional 38
percent permanent impairment of the left lower extremity. The period of the award was 109.44

6

The medical adviser referred to a report by a Dr. Kalisky without further explanation.

3

weeks from March 6, 2012. The decision found that appellant was not entitled to an additional
schedule award for permanent impairment of the right lower extremity.
Appellant requested a hearing before an OWCP hearing representative, which was held
on August 10, 2012. By decision dated October 12, 2012, the hearing representative affirmed
the April 11, 2012 decision, finding that the A.M.A., Guides had been properly applied in this
case.
On April 10, 2013 appellant appealed to the Board. In the November 22, 2013 decision,7
the Board found that appellant did not have an additional impairment for the right lower
extremity, but as to the left lower extremity, the Board indicated that OWCP’s medical adviser
did not clearly explain how he calculated the additional 38 percent permanent impairment of the
left lower extremity. The case was remanded for a clarification from the medical adviser.
By report dated June 25, 2014, an OWCP medical adviser opined that appellant was not
entitled to an additional schedule award for the left lower extremity above the 60 percent
previously awarded. He indicated that the Combined Values Chart would be used to calculate
the knee impairment with the lumbar permanent impairment affecting the left lower extremity.
In a decision dated July 31, 2014, OWCP found that appellant was not entitled to an
additional schedule award for the left lower extremity. It found that the medical evidence of
record did not establish more than 60 percent permanent impairment of the left lower extremity.
By undated letter postmarked September 15, 2014, appellant requested a hearing before
an OWCP hearing representative.8 By decision dated December 17, 2014, OWCP denied the
hearing request. It found the request was untimely, and that the issue in the case could equally
well be addressed by submitting evidence with a request for reconsideration.
LEGAL PRECEDENT -- ISSUE 1
5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of
use of a member or function of the body, the claimant is entitled to a schedule award for the
permanent impairment of the scheduled member or function.9 Neither FECA nor its
implementing regulations specify the manner in which the percentage of impairment for a
schedule award shall be determined. For consistent results and to ensure equal justice for all
claimants, OWCP has adopted the A.M.A., Guides as the uniform standard applicable to all

7

Supra note 3.

8

The appeal request form accompanying the letter was dated August 30, 2014.

9

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).

4

claimants.10 For schedule awards after May 1, 2009, the impairment is evaluated under the sixth
edition.11
With respect to knee impairment, the A.M.A., Guides provides a regional grid at Table
16-3. The Class of Diagnosis (CDX) is determined based on specific diagnosis, and then the
default value for the identified CDX is determined. The default value (grade C) may be adjusted
by using grade modifiers for Functional History ((GMFH), Table 16-6), Physical Examination
((GMPE), Table 16-7) and Clinical Studies ((GMCS), Table 16-8). The adjustment formula is
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).13
12

ANALYSIS -- ISSUE 1
In the present case, OWCP issued a schedule award decision dated February 13, 2007 for
20 percent left lower extremity permanent impairment. An additional two percent permanent
impairment was awarded in a September 15, 2009 decision and an additional 38 percent
permanent impairment was awarded on April 11, 2012. As noted in the history of the case, both
Dr. Wilson and an OWCP medical adviser subsequently opined that appellant had 59 percent left
lower extremity permanent impairment under Table 16-3. In the June 25, 2014 report, the
medical adviser noted that for total knee replacement, poor result (class 4), the default (grade C)
lower extremity permanent impairment was 67 percent.14 Applying the net adjustment formula,
the medical adviser used a grade modifier 3 (severe problem) for functional history GMFH,
grade modifier 3 (severe problem) for physical examination GMPE, and grade modifier 2
(moderate problem) for clinical studies GMCS. Since the poor result from knee replacement
surgery was CDX 4, the net adjustment formula resulted in a grade A impairment, totaling 59
percent permanent impairment of the left lower extremity.15
In the prior appeal, the Board indicated that it was unclear how the medical adviser
determined the additional left lower extremity impairment. The September 15, 2009 OWCP
decision had provided two percent permanent impairment to the left lower extremity based on a
lumbar injury, unrelated to the left knee. As the Board noted, the current permanent impairment
would not be reduced by a prior impairment to the same member that did not duplicate the
current impairment.16

10

A. George Lampo, 45 ECAB 441 (1994).

11

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
12

A.M.A., Guides 509, Table 16-3.

13

The net adjustment is up to +2 (grade E) or -2 (grade A).

14

A.M.A., Guides 511, Table 16-3.

15

Id.

16

T.S., Docket No. 09-1308 (issued December 22, 2009); 20 C.F.R. § 10.404(d)(2).

5

The medical adviser indicated in the June 25, 2014 report that, under the A.M.A., Guides,
the left knee permanent impairment and the lumbar impairment affecting the left knee would be
combined. A claimant cannot receive more than a 100 percent permanent impairment for a given
member, and the A.M.A., Guides provides a Combined Values Chart to combine regional
impairments to a scheduled member of the body.17
In this case, the current left knee permanent impairment of 59 percent is combined with 2
percent for the lumbar injury. Under the Combined Values Chart, combining 59 and 2, results in
60 percent impairment.18 Therefore, the left lower extremity permanent impairment is 60
percent. Appellant previously received schedule awards for the left lower extremity of 20, 2, and
38 percent, for a total of 60 percent. The Board accordingly finds that, based on the evidence of
record, appellant does not have more than a 60 percent left lower extremity permanent
impairment.
On appeal appellant contends that she still has problems with her right knee, and has
arthritis in both knees. The issue on appeal is permanent impairment to the left lower extremity.
As explained above, appellant has not established greater impairment than that previously
awarded. She may pursue additional claims with OWCP as appropriate.
Appellant may request a schedule award or increased schedule award, at any time, based
on evidence of a new exposure or medical evidence showing a progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
The statutory right to a hearing under 5 U.S.C. § 8124(b)(1) follows the initial final merit
decision of OWCP. Section 8124(b)(1) provides as follows: “Before review under section
8128(a) of this title, a claimant for compensation not satisfied with a decision of the Secretary
under subsection (a) of this section is entitled, on request made within 30 days after the date of
issuance of the decision, to a hearing on his claim before a representative of the Secretary….”
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 as a matter of right.19 The Board has held that OWCP, in its
broad discretionary authority in the administration of FECA,20 has the power to hold hearings in
certain circumstances where no legal provision was made for such hearings and that OWCP must
exercise this discretionary authority in deciding whether to grant a hearing.21 OWCP procedures,
which require OWCP to exercise its discretion to grant or deny a hearing when the request is

17

See S.L., Docket No. 09-0835 (issued October 23, 2009).

18

A.M.A., Guides 605.

19

Claudio Vazquez, 52 ECAB 496 (2001).

20

5 U.S.C. §§ 8101-8193

21

Marilyn F. Wilson, 52 ECAB 347 (2001).

6

untimely or made after reconsideration, are a proper interpretation of FECA and Board
precedent.22
ANALYSIS -- ISSUE 2
OWCP issued a final decision dated July 31, 2014. Appellant had 30 days to timely
request a hearing. A hearing request must be mailed within 30 days, as determined by the
postmark or other carrier’s date marking.23 In this case, the postmark date of appellant’s hearing
request was September 15, 2014. As this was more than 30 days after the July 31, 2014 decision,
it is untimely.24
Appellant is therefore not entitled to a hearing as a matter of right.25 OWCP must
exercise its discretion with respect to the untimely hearing request. In this case, it found that the
issues could equally well be addressed by requesting reconsideration and submitting additional
evidence. This is considered a proper exercise of OWCP’s discretionary authority.26
The Board accordingly finds that OWCP properly denied the hearing request in this case.
The hearing request was untimely and OWCP properly exercised its discretionary authority.
CONCLUSION
The Board finds that appellant has not established more than 60 percent permanent
impairment of the left lower extremity, for which she previously received a schedule award. The
Board further finds that OWCP properly denied the hearing request.

22

Teresa M. Valle, 57 ECAB 542 (2006).

23

20 C.F.R. § 10.616. See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of
the Written Record, Chapter 2.1601.4(a) (October 2011).
24

See R.B., Docket No. 16-1071 (issued December 14, 2016).

25

Claudio Vazquez, supra note 17.

26

See Mary E. Hite, 42 ECAB 641, 647 (1991).

7

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 17, and July 31, 2014 are affirmed.
Issued: May 4, 2017
Washington, DC

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

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

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

8