United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Minneapolis, MN, Employer
__________________________________________

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

Docket No. 16-1150
Issued: February 3, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 6, 2016 appellant filed a timely appeal from a March 31, 2016 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $5,820.50; (2) whether OWCP abused its discretion by refusing to waive recovery of
the overpayment; and (3) whether OWCP properly required recovery of the overpayment by
deducting $230.00 from appellant’s compensation payments every 28 days.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
In October 2013, OWCP accepted that appellant, then a 37-year-old nurse, sustained a
small disc herniation at C6-7 due to performing her work duties on April 29, 2013. It later
updated the accepted conditions to include central disc herniation with instability at C4-5.2
Appellant stopped work on April 30, 2013 and received disability compensation on the daily
rolls beginning June 13, 2013 and on the periodic rolls beginning September 21, 2014. She
received compensation at the augmented rate of 75 percent because she had a dependent within
the meaning of FECA.3
In an August 23, 2013 letter received by OWCP on the same date, appellant advised that
effective June 13, 2013 her spouse and child were no longer living with her. She noted, “There
is no child support or alimony orders on my part.”
In a February 24, 2015 notice, OWCP advised appellant of its preliminary determination
that she received an overpayment of compensation in the amount of $5,820.50 because she was
paid at the augmented rate from June 13, 2013 to October 18, 2014 despite not having a
qualifying dependent within the meaning of FECA for this period.4 It also made a preliminary
determination that she was not at fault in the creation of the overpayment. OWCP advised
appellant that she could submit evidence challenging the fact and amount of the overpayment, as
well as request waiver of the overpayment. It requested that appellant complete and return an
enclosed financial information questionnaire (Form OWCP-20) within 30 days even if she was
not requesting waiver of recovery of the overpayment.5
Appellant submitted a copy of the Form OWCP-20 financial information questionnaire
which she completed on March 16, 2015 along with supporting documentation. She listed
figures for monthly income and monthly expenses, and indicated that she had $11,900.00 in
assets comprised of $3,900.00 in checking account monies and $8,000.00 in saving account
monies. Appellant checked a box requesting a telephone conference with OWCP and requested
waiver of recovery of the overpayment.
On April 23, 2015 appellant participated in a telephone conference with an OWCP claims
examiner during which she further discussed her financial situation, including her monthly
income and monthly expenses. She reported that she had assets of $11,900.00 ($3,900.00 in her
checking account and $8,000.00 in her savings account), but that she was saving this money for
when she needed new hearing aids. Appellant indicated that her insurance company covered
hearing aids but that she did not know the extent of the coverage.
2

OWCP previously accepted that appellant sustained work injuries on August 30, 2011 and April 7, 2012.

3

See infra notes 6 through 10.

4

The record contains OWCP documentation showing that appellant received $61,515.10 in compensation for the
period June 13, 2013 to October 18, 2014, but that she should have received only $55,694.60 based on the
applicable basic rate of 66 2/3 percent.
5

In a March 23, 2015 letter, OWCP advised appellant that it had made a preliminary determination that she
received an $845.74 overpayment of compensation. The evidence of record reveals that appellant repaid this
overpayment in full in mid-2015. The record does not contain a final decision of OWCP concerning this
preliminary overpayment determination and the matter is not presently before the Board. See 20 C.F.R. § 501.2(c).

2

In a March 31, 2016 decision, OWCP determined that appellant received an overpayment
in the amount of $5,820.50. It found that she was not at fault in the creation of the overpayment,
but that the overpayment was not subject to waiver because her assets of $11,900.00 exceeded
the applicable resource base. OWCP required repayment of the overpayment by deducting
$230.00 from appellant’s compensation payments every 28 days.
LEGAL PRECEDENT -- ISSUE 1
FECA provides that the United States shall pay compensation for the disability or death
of an employee resulting from a personal injury sustained while in the performance of duty.6 If
the disability is total, the United States shall pay the employee during the period of total
disability the basic compensation rate of 66 2/3 percent of her monthly pay. A disabled
employee is entitled to an augmented compensation rate of 75 percent if he or she has one or
more dependents.7
A dependent includes an unmarried child who, while living with the employee or
receiving regular contributions from the employee toward his or her support, is either under 18
years of age or over 18 years of age and incapable of self-support due to physical or mental
disability.8 A child is also considered a dependent if he or she is an unmarried student under 23
years of age who has not completed four years of education beyond the high school level and is
currently pursuing a full-time course of study at a qualifying college, university, or training
program.9
If a claimant received compensation at the augmented rate during a period when he or she
did not have an eligible dependent, the difference between the compensation that was disbursed
at the 75 percent augmented rate and the compensation that should have been disbursed at the
66 2/3 percent basic rate constitutes an overpayment of compensation.10
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $5,820.50. In the present case, appellant received compensation at the augmented rate of 75
percent for the period June 13, 2013 to October 18, 2014 despite that fact that she did not have
any qualifying dependents under FECA. The record contains evidence which shows that she
received $61,515.10 in compensation for the period June 13, 2013 to October 18, 2014 at the
improper augmented rate. OWCP calculated that appellant was only entitled to receive
$55,694.60 at the basic rate of 66 2/3 percent during this period. Therefore, the record
establishes that appellant received a $5,820.50 overpayment of compensation.

6

5 U.S.C. § 8102(a).

7

See O.R., 59 ECAB 432, 436 (2008). See also 5 U.S.C. §§ 8105(a) and 8110(b).

8

5 U.S.C. § 8110(a).

9

See E.G., 59 ECAB 599, 603 (2008).

10

See Ralph P. Beachum, Sr., 55 ECAB 442, 445 (2004).

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LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter
that rests within OWCP’s discretion pursuant to statutory guidelines.11 These statutory
guidelines are found in section 8129(b) of FECA which states: “Adjustment or recovery [of an
overpayment] by the United States may not be made when incorrect payment has been made to
an individual who is without fault and when adjustment or recovery would defeat the purpose of
this subchapter or would be against equity and good conscience.”12 If OWCP finds a claimant to
be without fault in the matter of an overpayment, then, in accordance with section 8129(b),
OWCP may only recover the overpayment if it has determined that recovery of the overpayment
would neither defeat the purpose of FECA nor be against equity and good conscience.
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose
of FECA if recovery would cause hardship because the beneficiary needs substantially all of his
or her income (including compensation benefits) to meet current ordinary and necessary living
expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data provided by the Bureau of Labor Statistics.13 According to 20 C.F.R.
§ 10.437, recovery of an overpayment is considered to be against equity and good conscience
when an individual who received an overpayment would experience severe financial hardship
attempting to repay the debt and when an individual, in reliance on such payments or on notice
that such payments would be made, gives up a valuable right or changes his or her position for
the worse.14 To establish that a valuable right has been relinquished, it must be shown that the
right was in fact valuable, that it cannot be regained, and that the action was based chiefly or
solely in reliance on the payments or on the notice of payment.15
ANALYSIS -- ISSUE 2
In its March 31, 2016 final overpayment decision, OWCP determined that recovery of the
overpayment was proper under FECA because appellant had not shown both that she needs
substantially all of her current income to meet current ordinary and necessary living expenses
and that her assets did not exceed the allowable resource base. It noted that appellant’s assets of
$11,900.00 (checking and savings account monies) exceeded the allowable resource base of
$4,800.00 for an individual, like appellant, who did not have a qualifying dependent.

11

See Robert Atchison, 41 ECAB 83, 87 (1989).

12

5 U.S.C. § 8129(b).

13

20 C.F.R. § 10.436. An individual is deemed to need substantially all of his or her monthly income to meet
current and ordinary living expenses if monthly income does not exceed monthly expenses by more than $50.00.
Assets must not exceed a resource base of $4,800.00 for an individual or $8,000.00 for an individual with a spouse
or dependent plus $960.00 for each additional dependent. See Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Initial Overpayment Actions, Chapter 6.200.6(a) (October 2004); B.F., Docket No. 13-785 (issued
September 20, 2013).
14

Id. at § 10.437(a), (b).

15

Id. at § 10.437(b)(1).

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The Board finds that appellant has not established that recovery of the overpayment
would defeat the purpose of FECA. As noted above, appellant’s assets of $11,900.00 exceeded
the allowable resource base of $4,800.00 for an individual, like appellant, who did not have a
qualifying dependent.16 Because she has not met the second prong of the two-prong test of
whether recovery of the overpayment would defeat the purpose of FECA, it is not necessary for
OWCP to consider the first prong of the test, i.e., whether appellant has shown that she needs
substantially all of her current income to meet current ordinary and necessary living expenses.17
The Board further finds that appellant has not established that recovery of the
overpayment would be against equity and good conscience. Appellant has not shown, for the
reasons noted above, that she would experience severe financial hardship in attempting to repay
the debt or that she relinquished a valuable right or changed her position for the worse in reliance
on the payment which created the overpayment.18
Because appellant has failed to establish that recovery of the overpayment would defeat
the purpose of FECA or be against equity and good conscience, she has failed to show that
OWCP properly refused to waive recovery of the overpayment.
On appeal appellant argues that the assets in her savings and checking account she
reported in March 2015 were a “snapshot of that day, that time” and that the amount reported
does not constitute what is currently available to her. As explained above, the evidence of record
at the time of OWCP’s March 31, 2016 decision was insufficient to establish that recovery of the
overpayment would defeat the purpose of FECA or be against equity and good conscience. The
financial information appellant provided in March 2015 did not show that she needs substantially
all of her current income to meet ordinary and necessary living expenses and that her assets did
not exceed the allowable resource base. The financial information provided also did not show
that she would experience severe financial hardship in attempting to repay the debt or that she
had relinquished a valuable right or changed her position for the worse in reliance on the
payment which created the overpayment. Other than to argue that her financial situation had
changed, appellant provided no evidence to establish that allegation. Thus, OWCP’s decision to
deny her request for waiver of recovery of the overpayment was proper.
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of Title 20 of the Code of Federal Regulations provides in pertinent part:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
soon as the error is discovered or his or her attention is called to the same. If no
refund is made, OWCP shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the

16

See supra note 13.

17

See id.

18

See William J. Murphy, 41 ECAB 569, 571-72 (1989).

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financial circumstances of the individual, and any other relevant factors, so as to
minimize any hardship.”19
ANALYSIS -- ISSUE 3
The record supports that, in requiring repayment of the overpayment by deducting
$230.00 from appellant’s compensation payments every 28 days, OWCP took into consideration
the financial information submitted by appellant as well as the factors set forth in section 10.441
and found that this method of recovery would minimize any resulting hardship on appellant.20
Therefore, OWCP properly required recovery of the overpayment by deducting $230.00 from
appellant’s compensation payments every 28 days.
CONCLUSION
The Board finds that appellant received a $5,820.50 overpayment of compensation and
that OWCP did not abuse its discretion by refusing to waive recovery of the overpayment. The
Board further finds that OWCP properly required recovery of the overpayment by deducting
$230.00 from appellant’s compensation payments every 28 days.

19

20 C.F.R. § 10.441(a); see Donald R. Schueler, 39 ECAB 1056 (1988).

20

At the time OWCP issued its final overpayment determination, appellant was receiving $694.00 in wage-loss
compensation benefits every 28 days.

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ORDER
IT IS HEREBY ORDERED THAT the March 31, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 3, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-2272
Issued: May 21, 2009

Case Submitted on the Record

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

JURISDICTION
On August 18, 2008 appellant, through his attorney, filed a timely appeal of the Office of
Workers’ Compensation Programs’ merit decision dated March 27, 2008. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than 11 percent impairment of his left upper
extremity for which he has received a schedule award.
FACTUAL HISTORY
This case has previously been before the Board on appeal on three occasions. On
August 3, 2004 appellant, then a 51-year-old letter carrier, filed a traumatic injury claim alleging
that he sustained a laceration to his left forearm in the performance of duty. The Office accepted
appellant’s claim for laceration of the left forearm with tendon involvement. By decision dated
March 21, 2006, it granted appellant a schedule award for 11 percent impairment of his left
upper extremity. Appellant requested review by the Board and in a decision dated September 19,

2006,1 the Board found that the medical evidence required additional development and remanded
the claim to the Office. The Office referred appellant to Dr. Stanley R. Askin, a Board-certified
orthopedic surgeon, to resolve a conflict of medical opinion evidence and by decision dated
December 11, 2006 denied appellant’s claim for an additional schedule award. The Board
reviewed this decision on July 24, 20072 and issued an order remanding case instructing the
Office to determine if Dr. Askin was properly selected to act as the impartial medical examiner.
The Office issued a decision on July 31, 2007 finding that appellant had no more than 11 percent
impairment of his left upper extremity for which he had received a schedule award. Appellant
requested review by the Board and the Board issued a second order remanding case on
January 31, 20083 finding that the case must be referred to a second impartial medical examiner
carefully selected in accordance with the Office’s procedures. The facts and the circumstances
of the case as set out in the Board’s prior decisions are adopted herein by reference.
The Office referred appellant for an impartial medical examination with Dr. William
Kirkpatrick, a Board-certified orthopedic surgeon, on February 19, 2008. In a report dated
March 5, 2008, Dr. Kirkpatrick reviewed appellant’s history of injury and medical history. He
noted that appellant had 80 degrees of pronation and 50 degrees of supination with no atrophy
and full active digital range of motion in the left hand. Dr. Kirkpatrick found that appellant
reached maximum medical improvement on February 1, 2005. He noted that appellant had no
sensory dysfunction or sensory loss in the left forearm. Dr. Kirkpatrick found that appellant had
one percent impairment due to loss of range of motion in supination. He also found a loss of
strength in the left upper extremity. Dr. Kirkpatrick stated:
“Using a Jamar Dynamometer, his normal strength on the right in the 3rd position
was 73 PSI compared to 52 PSI on the left. The A[merican] M[edical]
A[ssociation,] Guide[s to the Evaluation of Permanent Impairment] specifies that
little evidence exists of a significant difference in grip strength between the
dominant and nondominant hand. Therefore using 73 PSI as his normal strength,
a strength loss index can be calculated as per [p]age 509 of the [fifth] [e]dition.
The strength loss index percent equals (normal strength -- limited
strength)/normal strength. Therefore (73-52)/73 equals a strength loss index
percent of 28 percent. According to Table 16-34 on [p]age 509 of the [fifth]
[e]dition, a 28 percent strength loss index percent represents a 10 percent upper
extremity impairment.”
The Office medical adviser reviewed this report on March 22, 2008, correlated
Dr. Kirkpatrick’s findings with the A.M.A., Guides and agreed with his assessment. By decision
dated March 27, 2008, the Office found that the weight of the medical evidence established that

1

Docket No. 06-989 (issued September 19, 2006).

2

Docket No. 07-571 (issued July 24, 2007).

3

Docket No. 07-2092 (issued January 31, 2008).

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appellant had no more than 11 percent impairment of his left upper extremity for which he had
received a schedule award.4
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act5 and its
implementing regulations6 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.7 Effective
February 1, 2001, the Office adopted the fifth edition of the A.M.A., Guides as the appropriate
edition for all awards issued after that date.8
It is well established that, when a case is referred to an impartial medical specialist for
the purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized
and based on proper factual and medical background must be given special weight.9
ANALYSIS
The Office referred appellant for an impartial medical examination with Dr. Kirkpatrick,
a Board-certified orthopedic surgeon, to determine the extent of his permanent impairment in the
left upper extremity for schedule award purposes. Dr. Kirkpatrick completed a report on
March 5, 2008 and reviewed both appellant’s history of injury and his medical history. He
provided his findings on physical examination and noted that appellant had 80 degrees of
pronation and 50 degrees of supination with no atrophy and full active digital range of motion in
the left hand. Dr. Kirkpatrick noted that appellant had no sensory dysfunction or sensory loss in
the left forearm. He found that appellant reached maximum medical improvement on
February 1, 2005. Dr. Kirkpatrick concluded that appellant had one percent impairment due to

4

On appeal, appellant’s attorney requested that the Board increased appellant’s schedule award based on the
December 22, 2005 report of appellant’s physician, Dr. George Rodriguez, Board-certified in physical medicine and
rehabilitation. The Board reviewed this report in the September 19, 2006 decision and found that it was of
diminished probative value. As the Board has previously considered this report, it is not necessary to address this
report in this decision. Docket No. 06-989 (issued September 19, 2006).
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(a) (August 2002).
9

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

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loss of range of motion in supination of 50 degrees.10 He also found that appellant had an
impairment due to loss of strength based on grip strength testing. Dr. Kirkpatrick concluded that
appellant had a 28 percent strength loss or 10 percent upper extremity impairment.11 The Office
medical adviser reviewed this report on March 22, 2008, correlated Dr. Kirkpatrick’s findings
with the A.M.A., Guides and agreed with his assessment.
Dr. Kirkpatrick provided a detailed and comprehensive report based on a proper factual
background. He specifically noted that appellant had no sensory deficits on physical
examination and that his only findings were a loss of supination and a loss of grip strength.
Dr. Kirkpatrick provided citations to the A.M.A., Guides in support of his impairment rating. As
the properly selected impartial medical examiner his report is entitled to special weight and is
sufficient to resolve the conflict of medical opinion evidence and establish that appellant has no
more than 11 percent impairment of his left upper extremity for which he has received a schedule
award.
CONCLUSION
The Board finds that the weight of the medical evidence establishes that appellant has no
more than 11 percent impairment of his left upper extremity for which he has received a schedule
award.

10

A.M.A., Guides 474, Figure 16-37.

11

Id. at 509, Table 16-34.

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ORDER
IT IS HEREBY ORDERED THAT the March 27, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 21, 2009
Washington, DC

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

Colleen Duffy Kiko, 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
__________________________________________
W.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Seattle, WA, Employer
__________________________________________

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Appearances:
Norman R. McNulty, Jr., Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-1269
Issued: May 7, 2007

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 19, 2006 appellant, through counsel, filed a timely appeal of a February 17,
2006 merit decision of an Office of Workers’ Compensation Programs’ hearing representative
which affirmed the termination of his compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this termination case.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation on
the grounds that he no longer had any residuals or disability causally related to his employmentrelated aggravation of angina; and (2) whether appellant established that he had any continuing
employment-related residuals or disability after April 12, 2004.
FACTUAL HISTORY
On August 2, 1999 appellant, then a 45-year-old inspector, filed an occupational disease
claim. On June 5, 1999 he first realized that his unstable angina was caused by his federal
employment. Appellant stated that his heart disease was first diagnosed in 1991 and developed

into unstable angina.1 He alleged that it was aggravated by work-related stress that increased
over months until he was hospitalized for chest pain. Appellant stated that his doctor led him to
believe that stress was a factor of his heart disease. He stopped work on June 4, 1999.2 By letter
dated January 4, 2001, the Office accepted appellant’s claim for aggravation of angina.
Dr. Roger F.D. Chamusco, an attending Board-certified internist, submitted a
February 26, 2001 medical report which stated that physical activity and stress would definitely
aggravate appellant’s symptoms of angina pectoris because he had significant amounts of
myocardium that could become ischemic.
By letter dated May 15, 2001, the Office referred appellant, together with a statement of
accepted facts, the case record and a list of questions to be addressed, to Dr. Robert G.
Thompson, Jr., a Board-certified internist, for a second opinion medical examination.
In a report dated June 11, 2001, Dr. Thompson opined
between appellant’s work and his current anginal problems
June 1999. He stated that appellant’s condition was a natural
disease. Dr. Thompson found that appellant could not perform
could perform sedentary work with restrictions.

that there was no relationship
as he had not worked since
progression of his preexisting
his regular work duties but he

By letter dated July 27, 2001, the Office requested that Dr. Chamusco respond to
Dr. Thompson’s findings. In an August 2, 2001 letter, Dr. Chamusco opined that appellant had
severe effort-induced and stress-induced angina.
He reiterated that appellant’s work
environment would exacerbate his angina.
By letter dated September 5, 2001, the Office issued a notice of proposed termination of
appellant’s compensation based on Dr. Thompson’s medical opinion. The Office provided
30 days in which he could respond to this notice.
In an addendum report dated September 11, 2001, Dr. Thompson stated that the
aggravation of appellant’s angina pectoris due to his employment activities would have ceased as
soon as he stopped working. He noted that, based on general knowledge in the medical field,
this condition caused no long-term damage to the heart.
Dr. Chamusco stated in an October 2, 2001 letter, that the high stress environment in
appellant’s job aggravated his underlying coronary disease which resulted in bypass surgery and
probably contributed to the poor surgical outcome.
In an October 4, 2001 letter, appellant, through counsel, disagreed with the Office’s
proposed action. Counsel contended that Dr. Thompson’s report was not well rationalized.

1

In March 1991, appellant had a heart attack and subsequently underwent heart bypass surgery.

2

Appellant retired from the employing establishment on disability effective October 18, 1999.

2

The Office found a conflict in medical opinion between Dr. Chamusco and
Dr. Thompson as to whether appellant had any continuing employment-related residuals or
disability. To resolve the conflict, the Office, by letter dated October 18, 2001, referred
appellant, together with a statement of accepted facts, the case record and a list of questions, to
Dr. Dayne D. Hansen, Jr., a Board-certified internist, for an impartial medical examination.
In a December 14, 2001 report, Dr. Hansen stated that appellant was totally disabled from
performing his usual work duties.
However, he opined that appellant’s underlying
atherosclerosis was not caused or exacerbated by job stress. Rather, it was caused by smoking
and hyperlipidemia that went on for quite some time after his initial diagnosis.
By letter dated January 24, 2002, the Office requested that Dr. Hansen provide additional
information regarding appellant’s condition. In a February 15, 2002 letter, Dr. Hansen stated
that appellant was totally disabled from performing his regular work duties because they would
cause angina. He noted that appellant’s job caused angina due to increased activity and
increasing mental stress, which resulted in increased oxygen consumption by the heart, that
increased angina in the setting of significant coronary artery disease. Dr. Hansen opined that the
aggravation of this condition was not caused by appellant’s employment. He concluded that
appellant had underlying coronary disease that was not work related.
By letter dated February 26, 2002, the Office issued a notice of proposed termination of
appellant’s compensation based on the opinions of Dr. Thompson and Dr. Hansen. The Office
provided 30 days in which appellant could respond to this notice. Appellant did not respond
within the allotted time period.
In a decision dated April 26, 2002, the Office terminated appellant’s compensation
benefits based on Dr. Hansen’s impartial medical opinion. Appellant disagreed with this
decision and requested an oral hearing before an Office hearing representative.
By decision dated March 31, 2003, a hearing representative set aside the April 26, 2002
decision and remanded the case to the Office. The hearing representative found that
Dr. Hansen’s opinion was not well rationalized because he did not respond to the Office’s
question regarding the extent and duration of any work-related injury and relied on a statement
of accepted facts that was incomplete. The hearing representative directed the Office to prepare
a new statement of accepted facts and refer appellant to another impartial medical examiner to
resolve the conflict in medical opinion.
By letter dated June 23, 2003, the Office referred appellant, together with a new
statement of accepted facts, the case record and a list of questions to be addressed, to
Dr. E. Louise B. Kremkau, a Board-certified internist, for an impartial medical examination.
In a July 10, 2003 report, Dr. Kremkau reviewed the records and provided a history of the
1999 accepted employment injury and appellant’s social background. She reported normal
findings on physical and cardiovascular examination. Dr. Kremkau indicated that appellant
sustained coronary heart disease with myocardial infarction in 1991 and underwent quadruple
bypass surgery during that same year. She noted that he had unstable angina in 1999 and
underwent an angiography in the same year. Dr. Kremkau diagnosed fairly stable Functional

3

Class II angina by history with multiple risk factors for vascular disease which included former
tobacco abuse until 1999, obesity, hypertension, hyperlipidemia and diabetes. She stated that
appellant had reduced ventricular function and an ejection fraction of 40 percent at
catheterization in 1999. Dr. Kremkau opined that appellant appeared to be limited due to his
angina pectoris. She found that his angina pectoris was likely a combination of the natural
progression of his coronary disease, which was aggravated by his work stress in 1999.
Dr. Kremkau also found that appellant continued to experience angina although he was not
currently working. She concluded that appellant did not have a work-related condition at that
time.
By letter dated August 20, 2003, the Office requested that Dr. Kremkau provide
additional information regarding the development of appellant’s angina and whether he would
have still have sustained this condition had the work injury not occurred. In an August 29, 2003
supplemental report, she stated that appellant had important coronary disease and angina pectoris
which was not controlled at the time of the unstable anginal episode in 1999. Appellant also had
multi-vessel coronary disease, graft disease and evidence of coronary heart disease with reduced
ejection fraction. Because of the extent of the disease, appellant was a candidate for angina
pectoris. Dr. Kremkau indicated that appellant’s symptoms were related to the progression of his
coronary disease. She opined that in 1999 it was possible that appellant’s work activities
contributed to an aggravation of the angina pectoris due to the underlying coronary artery
disease.
By decision dated September 19, 2003, the Office terminated appellant’s compensation
benefits based on Dr. Kremkau’s impartial medical opinion. On October 9, 2003 appellant,
through counsel, requested an oral hearing.
In a January 29, 2004 decision, a hearing representative set aside the September 19, 2003
decision and remanded the case to the Office, finding that Dr. Kremkau’s opinion was not fully
rationalized on the issue of aggravation. On remand, the hearing representative instructed the
Office to obtain a supplemental report from Dr. Kremkau as to whether appellant’s coronary
artery disease was temporarily or permanently aggravated by his employment.
By letter dated February 10, 2004, the Office requested that Dr. Kremkau provide
clarification as to whether the aggravation of appellant’s coronary artery disease by his
employment was temporary or permanent. In a supplemental report dated March 24, 2004,
Dr. Kremkau opined that the 1999 episode of unstable angina was likely the result of the normal
progression of appellant’s coronary artery disease with multiple risk factors, many of which were
not under good control. She stated that it was possible that his work activities at that time
aggravated his condition. However, any work-related aggravation was temporary. She indicated
that no changes occurred with the coronary disease itself. Dr. Kremkau suspected that the
episode of angina that occurred might have been aggravated due to an increase in blood pressure
or heart rate. She concluded that the effects of the temporary aggravation was caused by
appellant’s employment.
In a decision dated April 12, 2004, the Office terminated appellant’s compensation. The
Office accorded special weight to Dr. Kremkau’s opinion as an impartial medical specialist. On
April 26, 2004 appellant, through counsel, requested an oral hearing.

4

By decision dated May 20, 2004, a hearing representative affirmed the Office’s April 12,
2004 decision. The hearing representative found that Dr. Kremkau’s opinion was sufficiently
rationalized to be given special weight afforded an impartial medical specialist.
Appellant submitted Dr. Chamusco’s progress notes dated November 25, 2002, August 5,
2003 and April 20, 2004. He stated that appellant was stable with infrequent angina on his
current medical therapy.
On August 17, 2005 appellant appealed to the Board. In an order dated January 9, 2006,
the Board remanded the case to the Office for reconstruction of the case record, as it did not
receive the case record within 30 days as requested. The Board directed the Office to reissue an
appropriate decision to fully protect appellant’s appeal rights.
On February 17, 2006 an Office hearing representative reissued the Office’s May 20,
2004 decision, affirming the termination of appellant’s compensation on the grounds that he no
longer had any residuals or disability causally related to his employment-related aggravation of
angina. The hearing representative accorded special weight to Dr. Kremkau’s medical opinion
as an impartial medical specialist.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation. After it has been determined that an employee has disability
causally related to his employment, the Office may not terminate compensation without
establishing that the disability had ceased or that it was no longer related to the employment.3
The Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.4
When 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.5
ANALYSIS -- ISSUE 1
The Board finds that a conflict in medical opinion arose between Dr. Chamusco, an
attending physician, and Dr. Thompson, an Office referral physician. The physicians disagreed
as to whether appellant had any continuing residuals or disability causally related to his accepted
aggravation of angina. Dr. Chamusco opined that physical activity and stress aggravated
3

Jason C. Armstrong, 40 ECAB 907 (1989).

4

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

5

James F. Weikel, 54 ECAB 660 (2003); Beverly Grimes, 54 ECAB 543 (2003); Sharyn D. Bannick, 54 ECAB
537 (2003); Daniel F. O Donnell, Jr., 54 ECAB 456 (2003); Phyllis Weinstein (Elliot H. Weinstein), 54 ECAB 360
(2003); Robert V. Disalvatore, 54 ECAB 351 (2003); Bernadine P. Taylor, 54 ECAB 336 (2003); Karen L. Yeager,
54 ECAB 317 (2003); Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

5

appellant’s symptoms of angina pectoris because he had significant amounts of myocardium that
could become ischemic. Dr. Thompson opined that there was no relationship between
appellant’s work and his current anginal problems as he had not worked since June 1999 and
that, although he could not perform his regular work duties, he could perform sedentary work
with restrictions.
The Office referred appellant to Dr. Kremkau, selected as the impartial medical
specialist. In a July 10, 2003 report, Dr. Kremkau reviewed appellant’s history of injury,
provided normal findings on examination and related her clinical findings. She indicated that
appellant sustained coronary heart disease with myocardial infarction and underwent quadruple
bypass surgery in 1991 and that he had unstable angina and underwent an angiography in 1999.
Dr. Kremkau diagnosed fairly stable Functional Class II angina by history and multiple risk
factors for vascular disease, including former tobacco abuse until 1999, obesity, hypertension,
hyperlipidemia and diabetes. She noted that appellant had reduced ventricular function and
ejection fraction of 40 percent at catheterization in 1999. Dr. Kremkau opined that appellant
appeared to be limited due to his angina pectoris. She further opined that his angina pectoris was
likely a combination of the natural progression of his coronary disease which was aggravated by
his work stress in 1999. Dr. Kremkau found that appellant continued to suffer from angina
although he was not currently working. She concluded that appellant did not have a work-related
condition at that time. In an August 29, 2003 supplemental report, Dr. Kremkau opined that
appellant had important coronary disease and angina pectoris which was not controlled at the
time of the unstable anginal episode in 1999. Appellant also had multi-vessel coronary disease,
graft disease and evidence of coronary heart disease with reduced ejection fraction. Because of
the extent of the disease, Dr. Kremkau stated that appellant was a candidate for angina pectoris,
noting that his symptoms were related to the progression of his coronary disease. She opined
that in 1999 it was possible that appellant’s work activities contributed to the aggravation of the
angina pectoris due to the underlying coronary artery disease. In a supplemental report dated
March 24, 2004, Dr. Kremkau noted that the 1999 episode of unstable angina likely caused the
normal progression of appellant’s coronary artery disease with multiple risk factors, many of
which were not under good control. However, it was possible that appellant’s work activities at
that time aggravated this condition. The aggravation was temporary in nature and there were no
changes in the coronary disease process itself. Dr. Kremkau suspected that the episode of angina
that occurred might have been aggravated because of an increase in blood pressure or heart rate.
The Board finds that Dr. Kremkau’s opinion is sufficiently well rationalized and based
upon a proper factual and medical background. It is entitled to special weight as she found that
appellant no longer had any residuals or disability due to his accepted employment-related
aggravation of angina.
LEGAL PRECEDENT -- ISSUE 2
As the Office met its burden of proof to terminate appellant’s compensation benefits, the
burden shifted to him to establish that he had any disability causally related to his accepted
injury.6 To establish a causal relationship between the condition, as well as any attendant
6

See Manuel Gill, 52 ECAB 282 (2001).

6

disability claimed and the employment injury, an employee must submit rationalized medical
evidence, based on a complete factual and medical background, supporting such a causal
relationship.7 Causal relationship is a medical issue and the medical evidence required to
establish a 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
ANALYSIS -- ISSUE 2
The relevant medical evidence regarding continuing employment-related residuals and
disability after April 12, 2004 includes Dr. Chamusco’s April 20, 2004 progress note.
Dr. Chamusco stated that appellant was stable with infrequent angina on his current medical
therapy. The Board finds that Dr. Chamusco’s progress note is insufficient to establish
appellant’s burden of proof because it failed to address how the diagnosed condition was caused
or contributed to by his accepted employment-related condition.10
Appellant has not submitted sufficient rationalized medical evidence establishing that he
has any continuing residuals or disability causally related to his accepted employment-related
condition.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation on the
grounds that he no longer had any residuals or disability causally related to his employmentrelated aggravation of angina. The Board further finds that appellant failed to establish that he
had any continuing employment-related residuals or disability after April 12, 2004.

7

Id.

8

Elizabeth Stanislav, 49 ECAB 540 (1998).

9

Leslie C. Moore, 52 ECAB 132 (2000); Victor J. Woodhams, 41 ECAB 345 (1989).

10

Richard A. Neidert, 57 ECAB ___ (Docket No. 05-1330, issued March 10, 2006); Alice J. Tysinger, 51 ECAB
638 (2000) (where the Board found that a medical opinion not fortified by medical rationale is of little probative
value).

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ORDER
IT IS HEREBY ORDERED THAT the February 17, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 7, 2007
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
__________________________________________
T.K., Appellant
and
DEPARTMENT OF THE ARMY,
LETTERKENNY ARMY DEPOT,
Chambersburg, PA, Employer
__________________________________________

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

Docket No. 16-1323
Issued: January 24, 2017

Case Submitted on the Record

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

JURISDICTION
On June 13, 2016 appellant, through counsel, filed a timely appeal from the April 21,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has established a right shoulder injury causally related to
the accepted March 23, 2015 employment incident.
On appeal, counsel contends that OWCP’s decision is contrary to fact and law.
FACTUAL HISTORY
On March 23, 2015 appellant, then a 35-year-old welder, filed a traumatic injury claim
(Form CA-1) alleging that on that date, while grinding off an old lug from a mine-resistant
ambush protected (MRAP) overhead, “the grinder grabbed hold of a boss” and jerked out of
appellant’s hands. He noted that he felt instant pain and felt a pop in his right shoulder.
Appellant stopped work on the date of the injury and returned to light duty on May 11, 2015.
Appellant was seen on March 23, 2015 at the employing establishment’s health clinic.
Dr. Gary K. Luttermoser, a Board-certified family practitioner, noted that appellant alleged an
injury at work. He described appellant’s account of the injury and indicated that due to
appellant’s significant right shoulder pain with movement of right arm, he referred appellant to a
hospital for evaluation and treatment.
Appellant also submitted medical records from a March 23, 2015 visit to Chambersburg
Hospital, where appellant was seen by Dr. Peter Viriassov, an osteopath Board-certified in
emergency medicine. Dr. Viriassov noted the history of injury, and indicated that the diagnostic
test results of appellant’s right shoulder demonstrated no fracture or dislocation. He listed his
diagnoses as acute right shoulder injury and concern for rotator cuff tear. Dr. Viriassov ordered
a follow-up appointment in one to two days for revaluation with Occupational Health Associates.
He also completed a form indicating that appellant had an acute right shoulder injury and was not
to return to work until he was medically evaluated again. The hospital record also includes a
diagnostic imaging report, signed by Dr. Stephen T. Thuahnai, a Board-certified radiologist,
indicating no fracture of the right shoulder. Appellant also submitted discharge instruction forms
from Chambersburg Hospital discussing shoulder sprains and rotator cuff injuries.
In a March 25, 2015 report, Dr. Anthony Bruno, a Board-certified orthopedic surgeon,
noted appellant’s history of injury and physical examination findings. He diagnosed pain in the
shoulder joint region. Dr. Bruno provided appellant instructions regarding exercise to increase
the range of motion in his elbow, fingers and wrists. He also gave appellant a sling, and
prescribed medication.
In reviewing an April 3, 2015 magnetic resonance imaging (MRI) scan, Dr. Henry Ching,
a Board-certified radiologist, listed impressions of: (1) moderate degenerative joint disease right
glenohumeral joint; (2) tears of the bases of the anterior and posterior labrum, moderate
degenerative change of the anterior and posterior labrum, small tear through the superior labrum;
(3) moderate tendinopathy of the supraspinatus, infraspinatus, and subscapularis tendons; and
(4) moderate degenerative joint disease of the right acromioclavicular joint. In a diagnostic
imaging report of the same date, Dr. Ching noted that appellant’s right shoulder joint capsule
volume was somewhat small in overall size, and also noted degenerative joint disease of the right

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glenohumeral joint without evidence of extravasation of contrast into the subacromial or
subdeltoid spaces.
In an April 6, 2015 report, Dr. Albert Tom, an orthopedic surgeon, noted that appellant
complained of shoulder pain, and he diagnosed early glenohumeral arthritis and degenerative
labral tears. He related that appellant had an injury to the right shoulder on March 23, 2015 at
the employing establishment. Dr. Tom continued to treat appellant for osteoarthrosis of the
shoulder region and pain in the joint shoulder.
Dr. Roger J. Robertson, a Board-certified orthopedic surgeon, reported on May 6, 2015,
that appellant would be sent for a second opinion as he was very resistant to treatment, had not
seen much improvement, and is having quite a bit of discomfort.
In a May 13, 2015 letter, OWCP noted that a limited amount of medical bills had been
paid, but that the merits of his claim had not been considered. However, as the medical bills had
now exceeded $1,500.00, appellant was required to submit further specified information to
support his claim. Appellant was afforded 30 days to submit additional medical evidence.
Appellant submitted physical therapy notes from Fulton County Medical Center for four
sessions from April 24 through May 21, 2015.
In a May 28, 2015 outpatient note from Penn State Hershey Medical Center, Dr. HyunMin Kim, an orthopedic surgeon, noted appellant’s history of injury on March 23, 2015. He
assessed appellant with right shoulder osteoarthritis with acute symptoms which developed after
a work injury. Dr. Donald J. Flemming, a Board-certified radiologist, conducted an x-ray on that
date which evinced moderate glenohumeral osteoarthritis.
By decision dated June 12, 2015, OWCP denied appellant’s claim as he had not
established an injury causally related to the accepted employment event.
In a June 18, 2015 report, Dr. Gregory R. Jaques, a family practitioner, examined
appellant for the employing establishment. He noted that appellant had an accident on March 23,
2015 while working as a welder, that he reviewed the records with appellant including the work
release to full duty on June 29, 2015, and encouraged appellant to continue his home exercise
program.
On June 30, 2015 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative.
In a July 29, 2015 report, Dr. Tom noted that appellant’s MRI scan of April 3, 2015
showed evidence of degenerative arthritis, but no evidence of rotator cuff tear or tendinopathy of
the rotator cuff. He discussed various treatment options with appellant, noting the complications
caused by his young age. Dr. Tom noted that appellant was to continue to work full duty,
prescribed him Emloxicam, and recommended follow-up at Hershey Medical Center.
At a hearing held on February 11, 2015, counsel argued that the emergency department
report from March 23, 2015 met the criteria for a rationalized report of causal relationship. He
noted that the history of the injury in the report from the emergency department was complete,
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and that as it noted a rotator cuff injury, the necessary elements to establish a claim were in the
report. Counsel argued that emergency room physicians do not write complete reports, that it
was unrealistic to expect a complete report from an emergency room physician, and that this is
not the law. Appellant described how the injury occurred, and noted that his supervisor told him
to go to the hospital.
By decision dated April 21, 2016, the hearing representative affirmed the June 12, 2015
decision. The hearing representative found that Dr. Kim was the only physician of record who
addressed the cause of appellant’s right shoulder condition; however, as his opinion was
speculative it was of little probative value.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was caused in the performance of duty as alleged,
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.4 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether fact of injury has been established.
First, the employee must submit sufficient evidence to establish that he actually experienced the
employment incident at the time, place, and in the manner alleged.6 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.7
The opinion of the physician must be based on a complete factual and medical
background of the employee, 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 employee.8 The weight of the
medical evidence is determined by its reliability, its probative value, its convincing quality, the

3

Id.

4

Joe D. Cameron, 42 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

5

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

6

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

7

Id.

8

I.J., 59 ECAB 408 (2008); supra note 5.

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care of analysis manifested, and the medical rationale expressed in support of the physician’s
opinion.9
ANALYSIS
The Board finds that the medical evidence of record fails to establish a causal relationship
between the accepted March 23, 2015 employment incident and a resulting medical diagnosis.
As noted by OWCP’s hearing representative, Dr. Kim was the only physician of record
who offered an opinion regarding causal relationship. He noted that appellant had a work injury
on March 23, 2015 and noted that appellant’s right shoulder osteoarthritis with acute symptoms
developed after the employment injury.
However, Dr. Kim did not explain the
pathophysiological process by which appellant’s employment incident would have caused or
aggravated his condition.10 As such his opinion is of limited probative value.
Dr. Luttermoser examined appellant immediately after the March 23, 2015 employment
incident for the employing establishment for right shoulder pain, but did not treat appellant nor
did he offer a definitive diagnosis or opinion on causal relationship. Instead he referred appellant
to the emergency room for treatment and consultation for significant right shoulder pain.
Dr. Viriassov examined appellant on the date of injury at the hospital and noted an acute right
shoulder injury and his concern for a rotator cuff tear. He ordered follow-up care. Dr. Viriassov
did not reach any conclusion with regard to a definitive diagnosis or causal relationship. These
two physicians offered no opinion regarding the cause of appellant’s right shoulder condition,
therefore, these reports are insufficient to meet appellant’s burden of proof. Medical evidence
submitted to support a claim for compensation should reflect a correct history and should offer a
medically-sound explanation of how the work incident caused a diagnosed condition.11
Similarly the reports from Drs. Bruno, Robertson, Jacques, and Tom offered no opinion
regarding causal relationship. In his March 25, 2015 report, Dr. Bruno noted appellant’s history
of injury, physical examination findings, and diagnosed right shoulder pain. Dr. Robertson in his
May 6, 2015 report related that appellant would be sent for second opinion evaluation.
Dr. Jacques’ report of June 18, 2015 for the employing establishment cleared appellant for fullduty work but did not address causal relation. Likewise, Dr. Tom provided reports dated July 29,
2015, wherein he discussed appellant’s degenerative arthritis, but failed to provide any
explanation linking this condition to the March 23, 2015 employment incident. Lacking
rationalized medical explanation as to how the accepted employment incident caused the
diagnosed condition, these reports are also of limited probative value.12
Drs. Thuahnai Ching and Fleming’s diagnostic study reports are of limited probative
value as they also do not address whether the employment incident of March 23, 2015 caused the
9

James Mack, 43 ECAB 321 (1991).

10

T.O., Docket No. 16-9423 (issued June 20, 2016).

11

See B.L., Docket No. 16-1205 (issued November 23, 2016).

12

Id.

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diagnosed conditions. Medical evidence which does not offer any opinion regarding the cause of
an employee’s condition is of limited probative value on the issue of causal relationship.13
Neither the fact that a disease or condition manifests itself during a period of employment
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.14 An award of compensation may not be
based on surmise, conjecture, or speculation.15 As appellant did not establish that his medical
condition was causally related to the accepted employment incident, he has not met his burden of
proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established a right shoulder injury causally related
to the accepted March 23, 2015 employment incident.

13

G.M., Docket No. 14-2057 (issued May 12, 2015); C.B., Docket No. 09-2027 (issued May 12, 2010).

14

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

15

D.I., 59 ECAB 158 (2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 21, 2016 is affirmed.
Issued: January 24, 2017
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 07-855
Issued: February 8, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 7, 2007 appellant filed a timely appeal from a January 16, 2007 Office of
Workers’ Compensation Programs’ hearing representative’s decision and a May 25, 2006
decision, finding that she had not established a recurrence of her accepted left carpal tunnel,
cervical and thoracic conditions on December 21, 2005. Under 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 sustained a recurrence of her accepted left carpal tunnel,
cervical and thoracic conditions as of December 21, 2005.
FACTUAL HISTORY
Appellant, a 46-year-old letter carrier, filed a Form CA-2 claim for benefits on January 2,
2002, alleging that she developed a degenerative disc condition in her neck causally related to
factors of employment. The Office accepted the claim for left carpal tunnel syndrome,
aggravation of herniated nucleus pulposus at C6-7 and left thoracic outlet syndrome.

In a January 2, 2002 form report, Dr. Dan Shamir, Board-certified in physical and
rehabilitative medicine and appellant’s treating physician, outlined work restrictions for
appellant: intermittent lifting, less than 5 pounds continuously and no more than 10 pounds
intermittently, not exceeding six hours per day; no sitting for more than three to five hours per
day, if driving; no walking more than four to five hours per day; no climbing more than two
hours per day; no bending/stooping, twisting, or pulling/pushing more than one to two hours per
day; no simple grasping more than five hours per day; no fine manipulation more than six hours
per day; and no reaching above the shoulder for more than two hours per day.
On March 9, 2004 appellant accepted a light-duty job from the employing establishment.
The position entailed casing mail, making collections and working the Automated Vehicle
Utilization System. The job offer did not list physical requirements.
In a March 29, 2004 Form CA-17, Dr. Shamir outlined updated work restrictions for
appellant. These included: intermittent lifting, less than 5 pounds continuously and no more
than 10 pounds intermittently, not exceeding six hours per day; no climbing at unprotected
heights; no kneeling, bending/stooping or twisting; no pulling/pushing more than 10 pounds; no
simple grasping, fine manipulation or reaching above the shoulder more than three hours with
the left hand and six hours with the right hand per day; and no restrictions on driving. In an
April 1, 2004 report, Dr. Shamir indicated that appellant’s work restrictions were permanent and
precluded her from carrying mail.
In a statement of accepted facts dated June 8, 2004, the Office indicated that appellant
had been working with restrictions since January 7, 2001.
On June 15, 2004 in order to determine appellant’s current condition, the Office referred
her to Dr. Sheldon Kaffen, a Board-certified orthopedic surgeon, for a second opinion
examination.
In a report dated July 9, 2004, Dr. Kaffen advised that appellant continued to have
residuals of her work-related carpal tunnel syndrome, which required the imposition of work
restrictions. He noted that these restrictions consisted of no repetitive use of the left upper
extremity and no pushing, pulling or lifting more than 10 to 15 pounds with the left upper
extremity. Dr. Kaffen indicated in a July 9, 2004 work capacity evaluation that there was no
reason appellant could not work an eight-hour day. In a supplemental report dated July 28, 2004,
he stated that she no longer experienced residuals from the accepted condition of thoracic outlet
syndrome.
On November 23, 2004 the employing establishment offered appellant a light-duty job
within her physical restrictions of no lifting or pulling over 15 pounds and no repetitive motions
of the left wrist or elbow. The job description stated:
“The modified job offer will involve the following duties and restrictions-Case routes as assigned; [t]ake out swings less than 15 pounds; verify
delivery confirmation; collections (early and late); other duties as needed
within your restrictions

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Carrier office -- casing mail into case with right hand; lifting up to five
pounds intermittently
Carrier street -- picking up mail from collection boxes; dropping off mail
for routes; intermittent driving.”
On December 3, 2004 appellant accepted the job offer; she stated in a written annotation
that she was accepting it “under protest.”
In a December 14, 2005 Form CA-17 report, Dr. Shamir reiterated his previous work
restrictions.
In a December 20, 2005 report, Dr. Shamir indicated that he was providing an addendum
to the December 14, 2005 form. He stated:
“The term ‘intermittent’ in the restriction sheet means a third of an eight[-]hour
workday. Therefore, in this case, 2.6 hours in an 8[-]hour workday would amount
to an ‘intermittent’ basis.”
In a statement dated February 23, 2006, appellant indicated that, a little more than a year
ago, the employing establishment had added a second collection run to her work duties. She
considered this beyond her limitations, though she stated that she was not sure until she
ascertained that the additional collection run amounted to a total of 4.5 hours in collection hours.
Appellant noted that Dr. Shamir had recommended that she perform no more than 2.6 hours of
intermittent collection time. She asserted that working collections longer than 2.6 hours was too
grueling, too continuous and that the extensive strain of lifting, pulling, heaving, reaching and
bending without a break caused her severe pain. Appellant further stated that occasional breaks
of a half minute to two minutes were not sufficient to constitute “intermittent” activity when
performing these duties. She concluded that the original light duty she accepted in 2002 entailed
no more than 3 hours of intermittent collections -- sufficiently close to Dr. Shamir’s prescribed
2.6 hours -- but that the 4.5 hours of intermittent collections she worked after accepting the
second collection run exceeded her physical restrictions and aggravated her work-related
conditions.
On February 29, 2006 appellant filed a Form CA-7 claiming compensation for 36.58
hours of leave without pay from December 21, 2005 to February 17, 2006. She asserted that the
strain of working two collection shifts caused her to be excused from work for an average of 1 to
2 hours per day during this period, amounting to a total of 36.58 hours.
By letters dated March 1 and 17, 2006, the Office requested additional information from
appellant in support of her recurrence claim. The Office requested a statement from her
explaining that her light-duty assignment had changed and indicating that it no longer met the
restrictions set by her physician. The Office also requested a medical opinion from appellant’s
treating physician supporting her claim that a worsening in her work-related condition had
occurred.

3

In a March 25, 2006 statement, appellant reiterated her previous contentions that the
Office had increased her intermittent hours from approximately 3 hours of collection to 4.5 hours
per day and that in December 2005 Dr. Shamir stated that she should not engage in intermittent
activity for more than 2.6 hours a day; therefore, she was “being worked beyond my already
established restrictions and [was] being sent home.”
The employing establishment submitted a March 27, 2006 “Attachment A” indicating
that the collections job was divided between the following duties: driving a postal vehicle from
one collection box to another, which constituted about 70 to 80 percent of the total collection
time; getting in and out of a vehicle, which constituted about 5 to 10 percent of the total
collection time; unlocking the collection box, scanning the barcode and taking mail out of the
collection box, which constituted about 10 to 15 percent of the total collection time; and sorting
mail back at the office, which constituted about 10 percent of the total collection time.
Appellant submitted an April 12, 2006 statement in which she responded to the
employing establishment’s “Attachment A.” In a handwritten annotation to Attachment A, she
stated:
“My station manager, Mr. Jernovoi stated the 50 collection boxes are
approximately one minute apart, hence, one hour out of four hours is driving time
spent which averages out to approximately 25 percent for driving, nowhere near
the 70 to 80 percent he indicated. The 75 percent balance is pure labor (3 hours,
over my restriction of 2 hours and 40 minutes). This whole attachment is
incorrect.”
By letter dated April 25, 2006, the Office requested additional factual and medical
information in support of appellant’s recurrence claim, reiterating the requirements stated in its
March 1 and 17, 2006 letters. The Office advised her that it was enclosing Dr. Kaffen’s second
opinion report, which established her restrictions. It stated:
“Your treating physician did agree with those restrictions. Then he tried to
establish a time frame for working. Your treating physician cannot arbitrarily say
in an eight[-]hour day that you cannot work 2.6 hours. He should evaluate you on
the job you do. For example, he should know the number of pickups you do per
day, the time it takes to do the pickups, the time you spend driving and then he
could suggest some restrictions. But a general statement is too vague.”
By decision dated May 25, 2006, the Office denied appellant compensation for a
recurrence of her accepted conditions. The Office stated that appellant failed to meet her burden
to establish that the December 2004 job offer exceeded her work restrictions or that in
December 2005 she had an objective worsening of her work-related back and neck conditions.
In a May 3, 2006 report, Dr. Shamir diagnosed C6-7 herniated nucleus pulposus,
myofascial neck and shoulder pain and possible bursitis or tendinitis. He stated:
“There is a letter from [the Office] stating that the treating physician cannot
arbitrarily say in an eight[-]hour work[day] [that] to you cannot work 2.6 hours. I
believe this is in reference to a letter we had sent defining the term intermittent.
4

In my opinion, they are misinterpreting the intent of the letter and what the letter
says as well as her restrictions. They need to go back and look at the restrictions
in a more detailed fashion. It should also be noted that the term intermittent is on
[the Office] form and there should be no reason to define it for them. If they have
the term on their form, they should know what it means. If they do n[o]t know
what it means, they should never have it on their form.”
By letter dated June 2, 2006, appellant’s attorney requested an oral hearing, which was
held on November 8, 2006.
Dr. Shamir submitted a September 20, 2006 report in which he reviewed appellant’s
history of treatment, stated findings on examination and concluded that she had a 13 percent left
upper extremity impairment based on left-sided carpal tunnel syndrome and an 8 percent left
upper extremity impairment based on left-sided sensory deficit.
On December 11, 2006 the Office granted appellant a schedule award for a 20 percent
permanent impairment of the left upper extremity for the period September 1, 2002 to
November 11, 2003 for a total of 62.4 weeks of compensation.1
At the hearing, appellant indicated that she had worked at the light-duty job which she
had accepted in December 2004 for eight hours per day until December 2005. She asserted that
she had tried to convey to Dr. Shamir at the time that she accepted it that the job exceeded her
work restrictions; she could not handle all the bending, pulling mail out, lifting and returning to
the truck and it was hard to straighten up because she experienced an incredible amount of pain.
Appellant stated that she also tried to tell the employing establishment that the job exceeded her
work restrictions, but they told her that her doctor had allowed her to perform these duties on an
intermittent basis; she, however, stated that she was not familiar with the term “intermittent.”
Appellant was asked whether Dr. Shamir had told her in December 2005 that she could
not do four hours per day of bending and lifting while picking up mail and whether he had
changed his opinion with regard to her ability to perform her light-duty job. She answered this
question by stating that Dr. Shamir told her that he had determined what the term “intermittent”
meant. When appellant was asked whether Dr. Shamir “all of a sudden” decided in
December 2005 that she should not bend or lift more than 2.5 or 2.6 hours, she responded,
“right.” Her attorney was advised that, if appellant’s work restrictions did in fact increase as of
December 2005, she needed to provide a medical report indicating the reasons to support the
change in restrictions. Appellant’s attorney requested that the record be held open for 30 days
for a report from Dr. Shamir explaining why there was a change in restrictions in
December 2005.2 No additional medical evidence was received by the Office.
By decision dated January 16, 2007, an Office hearing representative affirmed the
May 25, 2006 decision.
1

This decision is not contested on appeal.

2

Appellant stated at the hearing that she filed an Equal Employment Opportunity complaint on January 27, 2006,
alleging that she was discriminated against when the employing establishment gave her work that exceeded her
work restrictions.

5

LEGAL PRECEDENT
When an employee, who is disabled from the job she held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence establishes
that light duty can be performed, the employee has the burden to establish by the weight of the
reliable, probative and substantial evidence a recurrence of total disability. As part of this
burden, the employee must show either a change in the nature and extent of the injury-related
condition or a change in the nature and extent of the light-duty requirements.3
ANALYSIS
In the instant case, the record does not contain any medical opinion showing a change in
the nature and extent of appellant’s injury-related conditions. Indeed, she has failed to submit
any medical opinion containing a rationalized, probative report which relates her condition or
disability as of December 21, 2005 to her employment injury. For this reason, appellant has not
discharged her burden of proof to establish her claim that she sustained a recurrence of disability
as a result of her accepted employment injury.
The only medical evidence which appellant submitted consisted of Dr. Shamir’s
December 14, 2005 Form CA-17 duty status report and December 20, 2005 and May 3, 2006
reports explaining that the term ‘intermittent’ in the restriction sheet meant a third of an 8-hour
workday, so that 2.6 hours in an 8-hour workday would amount to an ‘intermittent’ basis.
However, Dr. Shamir did not provide any rationalized, probative medical opinion sufficient to
establish that appellant’s claimed partial disability as of December 21, 2005 was causally related
to her accepted left carpal tunnel, cervical and thoracic conditions. He, therefore, failed to
explain how her alleged recurrence of disability was caused or aggravated by her accepted
conditions.
Dr. Shamir’s reports do not constitute sufficient medical evidence demonstrating a causal
connection between appellant’s employment injury and her alleged recurrence of disability.
Causal relationship must be established by rationalized medical opinion evidence. The reports
submitted by appellant failed to provide an explanation in support of her claim that she was
partially disabled as of December 21, 2005. These reports did not establish a worsening of her
condition and, therefore, do not constitute probative, rationalized opinion evidence
demonstrating that a change occurred in the nature and extent of the injury-related condition.4
In addition, the Board finds that the evidence fails to establish that there was a change in
the nature and extent of appellant’s limited-duty assignment such that she no longer was
physically able to perform the requirements of her light-duty job. The record indicates that she
had been working for the employing establishment since January 7, 2001 at several light-duty
jobs with restrictions entailed by her work-related left carpal tunnel, cervical and thoracic
conditions. On December 3, 2004 appellant accepted a light-duty job within her prescribed
restrictions of no lifting or pulling over 15 pounds and no repetitive motions of the left wrist or
3

Terry Hedman, 38 ECAB 222 (1986).

4

William C. Thomas, 45 ECAB 591 (1994).

6

elbow. The job description indicated that she would work collections, both early and late, which
involved picking up mail from collection boxes, dropping off mail for routes and intermittent
driving. Appellant accepted the job under protest because the employing establishment had
added a second collection run to her work duties. Although she suspected that this additional
collection run would exceed her physical and work limitations, she stated that she was not sure
of this until she began working 4.5 hours doing collections in December 2005. Appellant
asserted that working collections longer than 2.6 hours was too grueling, too continuous and that
the strain of lifting, pulling, heaving, reaching and bending without sufficient breaks caused her
severe pain. She stated that, while she could perform the original light duty she accepted in
2002, with only 2.6 to 3 hours of intermittent collections, the second collection run added in
December 2005 exceeded her physical restrictions and aggravated her work-related conditions.
Appellant asserted that, because of the physical strain and pain caused by the job, she had to be
excused from work for an average of one to two hours per day. She sought a total of 36.58 hours
in wage-loss compensation from December 21, 2005 to February 17, 2006. This representing the
total number of hours for which she was sent home due to the strain caused by doing a job which
exceeded her work conditions and aggravated her accepted left carpal tunnel, cervical and
thoracic conditions.
The employing establishment controverted appellant’s claim. In its March 27, 2006
“Attachment A” describing the collections job, the employing establishment indicated that the
job appellant accepted in December 2004 was within the physical restrictions outlined by
Dr. Shamir, as she spent 70 to 80 percent of her time driving her vehicle. Appellant rejected this
assessment, stating that she spent only 25 percent of her time driving. In its April 25, 2006 letter,
however, the Office indicated that Dr. Shamir had agreed with Dr. Kaffen’s restrictions and had
no factual basis to challenge the employing establishment’s assertion that working 4.5 hours of
collections was within her restrictions. At the hearing, appellant testified that she reluctantly
accepted the new light-duty job in December 2004, because she believed Dr. Shamir had allowed
her to perform these duties on an intermittent basis, although she did not understand what
“intermittent” meant. However, she indicated that Dr. Shamir did not tell her in December 2004
that she could not do four hours per day of bending and lifting while picking up mail; i.e., doing
collections. In addition, neither appellant nor her attorney were able to provide a reason or an
explanation at the hearing as to why Dr. Shamir changed his opinion in December 2005 with
regard to her work restrictions and her ability to perform the light-duty job she accepted in
December 2004. Her attorney requested that the record be held open for 30 days so that he could
submit a report from Dr. Shamir explaining the reasons why there was a change in restrictions in
December 2005; however, Dr. Shamir did not submit such a report.
Accordingly, as appellant has not submitted any factual or medical evidence supporting
her claim that she was partially disabled from performing her light-duty assignment as of
December 21, 2005 as a result of her accepted left carpal tunnel, cervical and thoracic conditions,
she failed to meet her burden of proof. The Office properly found in its January 16 and May 25,
2006 decisions that appellant was not entitled to compensation based on a recurrence of her
employment-related disability.

7

CONCLUSION
The Board finds that appellant has not met her burden to establish that she was entitled to
compensation for a recurrence of disability as of December 21, 2005 causally related to her
accepted left carpal tunnel, cervical and thoracic conditions.
ORDER
IT IS HEREBY ORDERED THAT the January 16, 2007 and May 25, 2006 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: February 8, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Adelanto, CA, Employer
__________________________________________

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

Docket No. 09-958
Issued: November 5, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On February 27, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ January 14, 2009 merit decision concerning an overpayment of
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUES
The issues are: (1) whether appellant received a $43,976.74 overpayment of
compensation; and (2) whether the Office abused its discretion by refusing to waive recovery of
the overpayment.
FACTUAL HISTORY
The Office accepted that on June 13, 1997 appellant, then a 35-year-old unit manager,
sustained a lateral collateral ligament sprain of his left knee and torn left medial meniscus.
Appellant received a schedule award on June 14, 1999 for a 10 percent permanent impairment of
his left leg. He was later found to have a 24 percent permanent impairment of his left leg and on
January 21, 2000 appellant was granted an additional schedule award for a 14 percent permanent
impairment of his left leg. Appellant reinjured his left knee on July 17, 2001 due to running to

an emergency call and the Office accepted that he sustained a torn left medial meniscus due to
this injury. He again filed for a schedule award and was found to have a total permanent
impairment of his left leg of 17 percent. The Office failed to check appellant’s various claim
files for payment of schedule award compensation1 and did not realize that he already had been
compensated for a 24 percent permanent impairment of his left leg. On September 9, 2002 it
granted appellant a schedule award for a 17 percent permanent impairment of his left leg. The
award ran for 48.96 weeks from June 25, 2002 to June 2, 2003 and paid appellant a total of
$43,976.74.2
In a July 29, 2008 letter, the Office advised appellant of its preliminary determination that
he received a $43,976.74 overpayment of compensation because he received a September 9,
2002 schedule award for a 17 percent permanent impairment of his left leg which compensated
him for impairment for which he had previously been compensated. It also made a preliminary
determination that he was not at fault in the creation of the overpayment. The Office advised
appellant that he could submit evidence challenging the fact, amount or finding of fault and
request waiver of the overpayment. It informed appellant that he could submit additional
evidence in writing or at a prerecoupment hearing, but that a prerecoupment hearing must be
requested within 30 days of the date of the written notice of overpayment. The Office requested
that appellant complete and return an enclosed financial information questionnaire within 30
days even if he was not requesting waiver of the overpayment.
In a financial information questionnaire completed on August 10, 2008, appellant
indicated that he had $6,410.00 in monthly income from his employing establishment job and
private consulting work, $5,803.96 in monthly expenses and $1,100 in assets. On February 18,
2009 appellant participated in a telephone conference with an Office claims examiner. He
advised that his monthly income and monthly expenses had not changed since he completed the
financial information questionnaire on August 10, 2008.
In a January 14, 2009 decision, the Office determined that appellant received an
overpayment of compensation. It found that appellant was not at fault in the creation of the
overpayment but that the overpayment was not subject to waiver. The Office noted that the
evidence revealed that his monthly income exceeded his monthly expenses by $606.04. It
required repayment of the overpayment by deducting $500.00 from appellant’s compensation
payments every 28 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act3 provides that the United
States shall pay compensation for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty.4 Section 8129(a) of the Act provides, in
1

Appellant’s several left leg claims eventually were combined under a single master file.

2

Appellant reinjured himself on June 12, 2007 due to running to make an assistance call at work and the Office
accepted that he sustained a lateral collateral ligament sprain of his left knee and torn left lateral meniscus.
3

5 U.S.C. §§ 8101-8193.

4

Id. at § 8102(a).

2

pertinent part, “When an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations prescribed by the
Secretary of Labor by decreasing later payments to which an individual is entitled.”5 Section
8116(a) of the Act provides that, while an employee is receiving compensation or if he has been
paid a lump sum in commutation of installment payments until the expiration of the period
during which the installment payments would have continued, the employee may not receive
salary, pay or remuneration of any type from the United States, except in limited specified
instances.6
ANALYSIS -- ISSUE 1
Appellant first sustained a work-related left knee injury on June 13, 1997 and through
schedule awards dated June 14, 1999 and January 21, 2000 he was granted schedule award
compensation for a total permanent impairment of his left leg of 24 percent. He reinjured his left
knee on July 17, 2001, filed another schedule award claim and was found to have a total
permanent impairment of his left leg of 17 percent. The Office failed to check appellant’s
various claim files for payment of schedule award compensation and did not realize that he
already had been compensated for a 24 percent permanent impairment of his left leg. On
September 9, 2002 it granted appellant a schedule award for a 17 percent permanent impairment
of his left leg. The award ran for 48.96 weeks from June 25, 2002 to June 2, 2003 and paid
appellant a total of $43,976.74. Appellant was not entitled to receive the September 9, 2002
schedule award for a 17 percent left leg impairment because he had already been compensated
for this extent of left leg impairment. Therefore, the Office properly determined that appellant
received a $43,976.74 overpayment of compensation.
LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by the Office is a matter
that rests within its discretion pursuant to statutory guidelines.7 These statutory guidelines are
found in section 8129(b) of the Act which states: “Adjustment or recovery [of an overpayment]
by the United States may not be made when incorrect payment has been made to an individual
who is without fault and when adjustment or recovery would defeat the purpose of this
subchapter or would be against equity and good conscience.”8 If the Office finds a claimant to
be without fault in the matter of an overpayment, then, in accordance with section 8129(b), it
may only recover the overpayment if it determined that recovery of the overpayment would
neither defeat the purpose of the Act nor be against equity and good conscience.
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose
of the Act if recovery would cause hardship because the beneficiary needs substantially all of his
income (including compensation benefits) to meet current ordinary and necessary living
expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by
5

Id. at § 8129(a).

6

Id. at § 8116(a).

7

See Robert Atchison, 41 ECAB 83, 87 (1989).

8

5 U.S.C. § 8129(b).

3

the Office from data provided by the Bureau of Labor Statistics.9 According to 20 C.F.R.
§ 10.437, recovery of an overpayment is considered to be against equity and good conscience
when an individual who received an overpayment would experience severe financial hardship
attempting to repay the debt and when an individual, in reliance on such payments or on notice
that such payments would be made, gives up a valuable right or changes his position for the
worse.10 To establish that a valuable right has been relinquished, it must be shown that the right
was in fact valuable, that it cannot be regained and that the action was based chiefly or solely in
reliance on the payments or on the notice of payment.11
ANALYSIS -- ISSUE 2
Appellant has not established that recovery of the overpayment would defeat the purpose
of the Act because he has not shown both that he needs substantially all of his current income to
meet ordinary and necessary living expenses and that his assets do not exceed the allowable
resource base. His monthly income exceeds his monthly ordinary and necessary expenses by
approximately $606.00.12 As appellant’s current income exceeds his current ordinary and
necessary living expenses by more than $50.00, he has not shown that he needs substantially all
of his current income to meet current ordinary and necessary living expenses.13 Because he has
not met the first prong of the two-prong test of whether recovery of the overpayment would
defeat the purpose of the Act, it is not necessary for the Office to consider the second prong of
the test, i.e., whether appellant’s assets do not exceed the allowable resource base.
Appellant also has not established that recovery of the overpayment would be against
equity and good conscience because he has not shown, for the reasons noted above, that he
would experience severe financial hardship in attempting to repay the debt or that he
relinquished a valuable right or changed his position for the worse in reliance on the payment
which created the overpayment.14

9

20 C.F.R. § 10.436. An individual is deemed to need substantially all of his monthly income to meet current
and ordinary living expenses if monthly income does not exceed monthly expenses by more than $50.00. Desiderio
Martinez, 55 ECAB 245 (2004). Office procedure provides that assets must not exceed a resource base of $4,800.00
for an individual or $8,000.00 for an individual with a spouse or dependent plus $960.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6(a) (October 2004).
10

20 C.F.R. § 10.437(a), (b).

11

Id. at § 10.437(b)(1).

12

In a financial information questionnaire completed on August 10, 2008, appellant indicated that he had
$6,410.00 in income from his employing establishment job and private consulting work, $5,803.96 in monthly
expenses, and $1,100 in assets. In a February 18, 2009 telephone conference with an Office claims examiner,
appellant advised that his monthly income and monthly expenses had not changed since he completed the financial
information questionnaire on August 10, 2008.
13

See supra note 9.

14

See William J. Murphy, 41 ECAB 569, 571-72 (1989).

4

Because appellant has failed to establish that recovery of the overpayment would defeat
the purpose of the Act or be against equity and good conscience, he has failed to show that the
Office abused its discretion by refusing to waive the overpayment.15
CONCLUSION
The Board finds that appellant received a $43,976.74 overpayment of compensation. The
Board further finds that the Office did not abuse its discretion by refusing to waive recovery of
the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
January 14, 2009 decision is affirmed.
Issued: November 5, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

15

On appeal appellant argued that his financial situation prevented him from paying off the overpayment at a rate of
$500.00 every 28 days. He is not currently receiving Office compensation benefits. As recovery from continuing
compensation benefits under the Act is not involved in this case, the Board has no jurisdiction over the amount the
Office determined that appellant should repay each month. Levon H. Knight, 40 ECAB 658, 665 (1989).

5