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

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

Docket No. 13-1244
Issued: September 5, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 30, 2013 appellant filed a timely appeal from December 12, 2012
andFebruary 28, 2013 decisions of the Office of Workers’ Compensation Programs (OWCP)
denying her applications for reconsideration as her requests were untimely filed and failed to
establish clear evidence of error. Since more than 180 dayselapsed from the most recent merit
decision of June 9, 2009 to the filing of this appeal, the Board lacks jurisdiction to review the
merits of the claim pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits on the grounds that her requests were untimely filed and failed to
demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

On appeal, appellant contends that her claim was improperly denied, that various errors
were made by OWCP in the development of her claim and that the medical evidence supported
her claim.
FACTUAL HISTORY
The case has previously been before the Board. By order dated June 24, 2008, the Board
granted appellant’s request to withdraw her appeal docketed as No. 08-719.2 In a decision dated
June 9, 2009, the Board affirmed OWCP’s August 1, 2007 merit decision denying her claim for a
recurrence of disability commencing March 1996.3 In a decision dated June 2, 2011, the Board
found that OWCP properly denied appellant’s request for reconsideration without further merit
review of the claim.4 The history of the case as set forth in the Board’s prior decisions is
incorporated by reference.
On November 3, 2012 appellant filed a request for reconsideration. She detailed
communication problems with OWCP. Appellant noted that documents kept going back and
forth because she movedand thatherphone rarely had message space. She noted problems
obtaining records andinformationand indicated that not all of her medical records were noted in
previous decisions.
By decision dated December 12, 2012, OWCP denied appellant’s request for
reconsideration finding that it was not timely filed and failed to establish clear evidence of error
By letter received January 9, 2013, appellant again requested reconsideration. She
disputed the finding that her condition resolved on May 19, 1994 andcontended that the medical
evidence indicated that her injury was likely to recur. Appellantdiscussed the medical evidence
ofrecord,alleged that all the medical evidence was not of record and discussed various problems
with OWCP. She submitted a February 19, 2003 report with regards to her mental health, a
February 25, 2003 Compensation and Pension Examination Report and an August 21, 1997
medical report upon which she wrote comments.
By decision dated February 28, 2013, OWCP denied reconsideration findingappellant’s
request for reconsideration was not timely filed and failed to establish clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, a
claimant must file his or her application for review within one year of the date of that

2

Docket No. 08-719 (issued June 24, 2008).

3

Docket No. 08-2067 (issued June 9, 2009), petition for recon. denied,Docket No. 08-2067 (issued
September 2, 2009). Appellant’s claim was accepted for bilateral tenosynovitis of the hands and wrists, with
appellant resigning from federal employment on May 9, 1994.
4

Docket No. 10-2014 (issued June 2, 2011), petition for recon.denied,Docket No. 10-2014 (issued
October 24, 2011).

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decision.5The Board has found that the imposition of the one-year limitation does not constitute
an abuse of the discretionary authority granted OWCP under section 8128(a) of FECA.6
OWCP, however, may not deny an application for review solely on the grounds that the
application was not timely filed. When an application for review is not timely filed, it must
nevertheless undertake a limited review to determine whether the application establishes clear
evidence of error.7 OWCP regulations and procedures provide that OWCP will reopen a
claimant’s case for merit review, notwithstanding the one-year filing limitation set forth in 20
C.F.R. § 10.607(a), if the claimant’s application for review shows clear evidence of error on the
part of OWCP.8
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.9 The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error.10 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.11 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.12 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.13 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to shift the weight of the evidence in favor of the claimant and raise a substantial
question as to the correctness of OWCP’s decision.14 Aright to reconsideration within one year
also accompanies any subsequent merit decision on the issues.15
5

20 C.F.R. § 10.607(a).

6

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

7

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

8

Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3d
(January 2004). OWCP procedures further provide that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP made an error (for
example, proof that a schedule award was miscalculated). Evidence such as a detailed, well-rationalized medical
report which, if submitted before the denial was issued, would have created a conflict in medical opinion requiring
further development, is not clear evidence of error. Id. at Chapter 2.1602.3c.
9

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

10

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

11

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

12

See supra note 10.

13

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

14

Leon D. Faidley, Jr., supranote 6.

15

Robert F. Stone, 57 ECAB 292 (2005).

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ANALYSIS
OWCP properly determined that appellant failed to file a timely application for review.
Its procedures provide that the one-year time limitation period for requesting reconsideration
begins on the date of the original OWCP decision.16 Aright to reconsideration within one year
also accompanies any subsequent merit decision on the issues.17 Appellant’s November 3, 2012
and January 9, 2013 requests for reconsideration were submitted more than one year after the
Board’s merit decisionof June 9, 2009. They were untimely filed. Consequently, appellant must
establish clear evidence of error by OWCP in denying her claim for compensation.
On reconsideration, appellant has not presented any new evidence that she sustained a
recurrence of disability commencing March 1996. She submitted records relatedto her mental
health, but her claim was never accepted by OWCP for an emotional condition. Appellant also
submitted medical reports dated February 25, 2003 and August 21, 1997, but these reports were
already in the record. In order to establish clear evidence of error, a claimant must submit
evidence relevant to the issue which was decided by OWCP.18 Appellant has not submitted
evidence that shifts the weight of the evidence in her favor or that establishes clear error by
OWCP in the denial of her recurrence claim. Consequently, she has not established clear
evidence of error.
As the evidence submitted by appellant is insufficient to raise a substantial question as to
the correctness of the last merit decision, she has not established clear evidence of error.
On appeal, appellant argued the merits of her case. However, as noted, the Board only
has jurisdiction over OWCP’s December 12, 2012 and February 28, 2013 nonmerit decisions and
is therefore precluded from conducting a merit review.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits on the grounds that her requests were untimely filed and failed to
demonstrate clear evidence of error.

16

20 C.F.R. §10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

17

Robert F. Stone, 57 ECAB 292 (2005).

18

Howard Y. Miyashiro, 51 ECAB 253 (1999).

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ORDER
IT IS HEREBY ORDERED THATthe decisions of the Office of Workers’
Compensation Programs dated February 28, 2013 and December 12, 2012 are affirmed.
Issued: September 5, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
DEPARTMENT OF THE NAVY, PAC
FLEET/SHIPYARDS, Pearl Harbor, HI,
Employer
__________________________________________

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

Docket No. 09-912
Issued: November 3, 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 25, 2009 appellant filed a timely appeal from a November 19, 2008 decision
of the Office of Workers’ Compensation Programs, which denied modification of the May 14,
2008 decision that denied his schedule award claim. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant satisfied his burden of proof to establish that he sustained
a ratable hearing loss entitling him to a schedule award.
FACTUAL HISTORY
On December 14, 2007 appellant, a 29-year-old painting worker, filed an occupational
disease claim (Form CA-2) for bilateral hearing loss. He attributed his condition to noise
exposure produced by equipment and machinery at work. Appellant first became aware of his

hearing loss on June 6, 2007 and realized it was caused by his federal employment on
June 28, 2007.
Appellant submitted information concerning his employment history and audiograms
conducted between June 17, 2003 and November 11, 2007.
On December 10, 2007 appellant filed a schedule award claim (Form CA-7).
The Office referred appellant, together with a statement of accepted facts to
Dr. Meredith Pang, a Board-certified otolaryngologist, for a second opinion evaluation.
By report dated March 20, 2008, Dr. Pang reported findings on examination and
diagnosed appellant with bilateral sensorineural hearing loss. An audiogram conducted on
March 20, 2008 revealed “initially elevated and inconsistent right threshold hearing results” and
that “repeated testing improved the accuracy [of the results.]” The March 20, 2008 audiogram
reflected testing at 500, 1,000, 2,000 and 3,000 cycles per second levels and showed the
following decibel losses: 25, 20, 15 and 35 in the right ear and 25, 20, 15 and 20 in the left ear.
Dr. Pang opined that employment-related noise exposure aggravated appellant’s hearing loss and
that his hearing loss, though present, was not ratable.
By decision dated April 4, 2008, the Office accepted appellant’s claim for bilateral
hearing loss. It referred Dr. Pang’s report to the Office medical adviser to determine the
percentage of permanent employment-related hearing loss.
By report dated April 29, 2008, the Office medical adviser reported that, based on the
calculations specified by the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides) and the March 20, 2008 audiogram revealed that
appellant had a zero percent binaural hearing loss and, therefore, his hearing loss was not ratable.
By decision dated May 14, 2008, the Office denied appellant’s schedule award claim
because the evidence of record established that his hearing loss was not ratable.
On June 20, 2008 appellant requested reconsideration.
Appellant submitted a personal note dated June 3, 2008.
Appellant submitted a copy of the Office medical adviser’s April 29, 2008 report as well
as a copy of an audiogram conducted on November 1, 2007. He also submitted results from a
May 19, 2008 audiogram conducted by the employing establishment. The audiogram reflected
testing at 500, 1,000, 2,000 and 3,000 cycles per second levels and showed the following decibel
losses: 40, 50, 45 and 70 in the right ear and 50, 55, 50 and 45 in the left ear.
The Office referred the May 19, 2008 audiogram, together with a list of questions, to the
Office medical adviser.
By report dated October 24, 2008, the Office medical adviser opined that appellant’s
hearing loss was aggravated by his federal employment and diagnosed him with bilateral high
frequency neurosensory hearing loss. He noted that the May 19, 2008 audiogram revealed flat

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moderate loss but, because it lacked speech testing and bone conduction scores, he concluded
that this audiogram was incomplete. The Office medical adviser selected the results of the
March 20, 2008 audiogram over the May 19, 2008 audiogram because of “the history of
inconsistent responses and lack of a complete audiogram on May 19, 2008.”
By decision dated November 19, 2008, the Office denied modification of its May 14,
2008 decision.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulations2 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use of schedule 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 regulation as the appropriate standard for evaluating schedule losses.3
In order to establish an employment-related hearing loss, the Board requires that the
employee undergo both audiometric and otologic examination, that the audiometric testing
precede the otologic examination; that the audiometric testing be performed by an appropriately
certified audiologist, that the otologic examination be performed by an otolaryngologist certified
or eligible for certification by the American Academy of Otolaryngology, that the audiometric
and otologic examination be performed by different individuals as a method of evaluating the
reliability of the findings, that all audiological equipment authorized for testing meet the
calibration protocol contained in the accreditation manual of the American Speech and Hearing
Association, that the audiometric test results included both bone conduction and pure-tone air
conduction thresholds, speech reception thresholds and monaural discrimination scores and that
the otolaryngologist report must include: date and hour of examination, date and hour of the
employee’s last exposure to loud noise, a rationalized medical opinion regarding the relation of
the hearing loss to the employment-related noise exposure and a statement of the reliability of
the tests.4
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.5 Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second,
the losses at each frequency are added up and averaged.6 Then, the fence of 25 decibels is
1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404 (2002).

3

Id.

4

Raymond H. VanNett, 44 ECAB 480, 482-83 (1993). See also Federal (FECA) Procedure Manual, Part 3 -Medical, Requirements for Medical Reports, Chapter 3.600.8 (a) September 1995.
5

A.M.A., Guides 250 (5th ed. 2001).

6

Id.

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deducted because, as the A.M.A., Guides points out, losses below 25 decibels result in no
impairment in the ability to hear everyday speech under everyday conditions.7 The remaining
amount is multiplied by 1.5 to arrive at the percentage of monaural loss.8 The binaural loss is
determined by calculating the loss in each ear using the formula for monaural loss; the lesser loss
is multiplied by five, then added to the greater loss and the total is divided by six, to arrive at the
amount of the binaural loss.9 The Board has concurred in the Office’s adoption of this standard
for evaluating hearing loss.
ANALYSIS
The Office accepted that appellant sustained bilateral hearing loss caused by his federal
employment. The issue to resolve is whether his hearing loss is ratable such that he is entitled to
a schedule award. This is a medical issue which can only be proven by probative rationalized
medical evidence. Appellant has not submitted such evidence and, therefore, the Office properly
denied his schedule award claim.
On March 20, 2008 Dr. Pang provided narrative and audiometric reports meeting all the
criteria set by the Office. He opined that the employment-related noise exposure aggravated
appellant’s hearing loss and that his hearing loss, though present, was not ratable. The
audiometric report reflected testing at 500, 1,000, 2,000 and 3,000 cycles per second levels and
showed the following decibel losses: 25, 20, 15 and 35 in the right ear and 25, 20, 15 and 20 in
the left ear.
Using Dr. Pang’s audiometric report, the Office medical adviser found that appellant’s
hearing loss was not ratable. He applied the Office’s formula to average appellant’s hearing loss
at 500, 1,000, 2,000 and 3,000 cycles per second. In the right ear, Dr. Pang added 25, 20, 15 and
35 and divided by 4, resulting in an average hearing loss of 23.75 decibels. The Office medical
adviser then subtracted the 25 decibel fence and multiplied by 1.5, resulting in a zero percent loss
in the right ear. For the left ear, adding 25, 20, 15 and 20 produced a sum of 80 which, divided
by 4, resulted in an average hearing loss of 20 decibels. After subtracting the 25 decibel fence
and multiplying by 1.5, the Office medical adviser found a zero percent hearing loss in the left
ear. He concluded that appellant’s hearing loss was not ratable. The Board finds that the Office
medical adviser properly applied the Office’s protocols to the March 20, 2008 audiogram.
Therefore, appellant’s hearing loss is not compensable for schedule award purposes.
After the Office denied appellant’s claim, he submitted November 1, 2007 and May 19,
2008 audiometric reports. Although these reports demonstrated varying degrees of hearing loss
they are insufficient to satisfy his burden of proof as they do not comply with the requirements
set forth by the Office. For example, these reports lack speech testing and bone conduction
scores and were not prepared or certified as accurate by a “physician” as defined by the Act.10 It
7

Id.

8

Id.

9

Id.

10

Robert E. Cullison, 55 ECAB 570 (2004); Joshua A. Holmes, 42 ECAB 231 (1990).

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is appellant’s burden to submit a properly certified audiogram to the Office.11 The Office is not
required to rely on this evidence in determining the degree of appellant’s hearing loss because it
does not constitute competent medical evidence and is insufficient to satisfy his burden of proof.
The Board finds that appellant is not entitled to a schedule award because he did not
satisfy his burden of proof to establish that he sustained a ratable hearing loss in either ear.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained a ratable hearing loss entitling him to a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 19, 2008 is affirmed.
Issued: November 3, 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

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Id.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS BENEFITS ADMINISTRATION
REGIONAL OFFICE, Los Angeles, CA,
Employer
__________________________________________

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

Docket No. 21-0209
Issued: December 20, 2021

Case Submitted on the Record

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

JURISDICTION
On December 7, 2020 appellant, through counsel, filed a timely appeal from an October 26,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). 2 Pursuant to the

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
The Board notes that, following the October 26, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

Federal Employees’ Compensation Act3 (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 OWCP properly determined that appellant received an
overpayment of compensation in the amount of $5,787.18 for the period November 2, 2018
through May 25, 2019 for which he was without fault, as he concurrently received FECA wageloss compensation and Social Security Administration (SSA) age-related retirement benefits
without appropriate offset; and (2) whether OWCP properly denied waiver of recovery of the
overpayment.
FACTUAL HISTORY
On October 15, 2018 appellant, then a 67-year-old vocational rehabilitation counselor,
filed an occupational disease claim (Form CA-2) alleging that he developed right middle and ring
trigger fingers following his return to work on October 2, 2017. He stopped work on
September 11, 2018. On October 17, 2018 appellant filed a second Form CA-2 and alleged that
he had right thumb de Quervain’s tenosynovitis due to constant typing required by his federal
employment duties. On the reverse side of the claim form his supervisor indicated that appellant’s
retirement coverage was Federal Employees Retirement System (FERS). On December 19, 2019
OWCP accepted his claim for left carpal tunnel syndrome, right de Quervain’s tenosynovitis, and
right middle and ring trigger fingers. It authorized wage-loss compensation on the supplemental
rolls from November 2 through December 31, 2018. OWCP paid appellant wage-loss
compensation on the periodic rolls effective January 1, 2019. Appellant returned to full-duty work
on May 28, 2019.
On June 18, 2019 OWCP received a completed FERS/SSA dual benefits calculation form
from SSA, which reported that appellant had been in receipt of SSA age -related retirement benefits
since January 2017. SSA reported that: beginning January 2017, appellant’s monthly SSA rate
with FERS was $2,232.20 and without FERS was $1,460.10; beginning December 2017,
appellant’s monthly SSA rate with FERS was $2,276.80 and without FERS was $1,489.30;
beginning January 2018, appellant’s monthly SSA rate with FERS was $2,308.20 and without
FERS was $1,489.30; beginning December 2018, appellant’s monthly SSA rate with FERS was
$2,372.80 and without FERS was $1,531.00; and beginning January 2019, appellant’s monthly
SSA rate with FERS was $2,397.90 and without FERS was $1,531.00.
On July 20, 2020 OWCP notified appellant that it made a preliminary overpayment
determination that he had received an overpayment of compensation in the amount of $ 5,787.18
because he received FECA wage-loss compensation benefits concurrently with SSA age-related
retirement benefits for the period November 2, 2018 through May 25, 2019 for which he was
without fault.4 It noted that the SSA had confirmed that a portion of his SSA age-related retirement
3

5 U.S.C. § 8101 et seq.

4

The Board notes that OWCP appears to have made a typographical error by listing the period of the overpayment
as extending through July 25, 2019 in the preliminary overpayment determination. The FERS offset calculation and
the memorandum of decision both provide the correct period of overpayment from November 2, 2018 through
May 25, 2019.

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benefits were attributed to his years of federal service as an employee under FERS and that portion
required an offset of his FECA compensation benefits until July 26, 2019 when his monthly wageloss compensation was adjusted. OWCP explained that it had calculated the overpayment of
compensation by determining the difference between appellant’s SSA benefit rates with and
without FERS for each period, and then multiplying that amount by the number of days in each
period. Using these figures, OWCP calculated that the total overpayment amount was $ 5,787.18.
It found that appellant was at without fault in the creation of the overpayment. OWCP requested
that he complete an enclosed overpayment recovery questionnaire (Form OWCP-20) and submit
supporting financial documentation. Additionally, it provided an overpayment action request form
and advised appellant that, within 30 days of the date of the letter, he could request a final decision
based on the written record or request a prerecoupment hearing.
On August 13, 2020 OWCP received a second FERS/SSA dual benefits calculation form
from SSA, which reported that appellant had been in receipt of SSA age -related retirement benefits
since January 2017. SSA reported that: beginning January 2017, appellant’s monthly SSA rate
with FERS was $2,232.20 and without FERS was $1,460.10; beginning December 2017,
appellant’s monthly SSA rate with FERS was $2,276.80 and without FERS was $1,489.30;
beginning December 2018, appellant’s monthly SSA rate with FERS was $2,372.80 and without
FERS was $1,531.00; and beginning December 2019, appellant’s monthly SSA rate with FERS
was $2,436.20 and without FERS was $1,555.40.
In an overpayment action request form dated September 1, 2020, appellant requested
waiver of recovery of the overpayment. He also requested that OWCP make a decision based on
the written evidence. Appellant provided an August 6, 2020 Form OWCP-20 and some supporting
financial documentation. He listed his monthly income as $4,836.00. Appellant indicated that he
supported his daughter, a college student, and provided his monthly expenses including housing
$5,171.00, food $400.00, clothing $50.00, utilities $400.00, and homeowner association fees of
$280.00. He listed $2,028.00 in monthly credit card expenses and $8,329.00 in total monthly
expenses. Appellant noted that he had no cash or other funds. He provided his earnings and leave
statement, which indicated net income of $1,419.48 every two weeks, savings allotment of
$1,234.00 as well as Thrift Savings Plan (TSP) contribution of 10 percent with matching funds
from the employing establishment of $170.18 every two weeks, his mortgage statement with a
regular monthly payment of $4,725.00, and $23,650.00 in past due amounts, his past due property
tax bill for $5,377.53, his homeowners’ association monthly assessment of $280.00, his car loan
of $823.78, a loan payment with a monthly payment of $679.80 and $2,855.16 past due, a credit
card with a monthly payment of $141.22, and a second car loan of $385.42 per month.
By decision dated October 26, 2020, OWCP finalized the preliminary overpayment
determination that appellant had received an overpayment of compensation in the amount of
$5,787.18 for the period November 2, 2018 through May 25, 2019. It found that he was without
fault in the creation of the overpayment. OWCP denied waiver of recovery of the overpayment as
appellant had not provided supporting financial documentation, so that there was insufficient
evidence to establish that recovery would defeat the purpose of FECA or be against equity and
good conscience. It requested payment for the full amount of overpayment.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
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performance of his or her duty. 5 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States. 6
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
attributable to the employee’s federal service. 7 FECA Bulletin No. 97-09 provides that FECA
benefits have to be adjusted for the FERS portion of SSA benefits because the portion of the SSA
benefit earned as a federal employee is part of the FERS retirement package, and the receipt of
FECA benefits and federal retirement concurrently is a prohibited dual benefit. 8
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation.
The evidence of record indicates that, while appellant was receiving wage -loss
compensation benefits under FECA, he was also receiving SSA age-related retirement benefits
that were attributable to his federal service without an appropriate offset. A claimant cannot
concurrently receive FECA wage-loss compensation and SSA age-related retirement benefits
attributable to federal service for the same period. 9 The information provided by SSA established
that appellant received SSA age-related retirement benefits that were attributable to federal service
during the period November 2, 2018 through May 25, 2019. The Board thus finds that fact of
overpayment is established.
The Board further finds, however, that the case is not in posture for decision with respect
to the amount of the overpayment. To determine the amount of the overpayment, the portion of
SSA benefits that were attributable to federal service must be calculated. OWCP received
documentation from SSA with respect to the specific amount of SSA age -related retirement
benefits that were attributable to federal service. SSA provided its rate with FERS and without
FERS for the period November 2, 2018 through May 25, 2019. However, OWCP received two
FERS/SSA dual calculation transmittal forms, the first dated June 18, 2019 and the second dated
August 13, 2020, with differing amounts of SSA benefits with FERS shown. It is required by
statute and regulations to make findings of fact and provide a statement of reasons. 10 The Board
has held that, in overpayment cases, it is essential that OWCP provide the recipient of
5

5 U.S.C. § 8102(a).

6

Id. at § 8116.

7

20 C.F.R. § 10.421(d); L.D., Docket No. 21-0447 (issued September 28, 2021); T.B., Docket No. 18-1449 (issued
March 19, 2019); S.M., Docket No. 17-1802 (issued August 20, 2018).
8

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

9

Supra note 7.

10

See L.D., supra note 7; M.M., Docket No. 19-1914 (issued April 9, 2021); 5 U.S.C. § 8124(a) provides that
OWCP shall determine and make a finding of fact and an award for or against payment of compensation. 20 C.F.R.
§ 10.126 provides that OWCP’s final decision shall contain findings of fact and a statement of reasons. See also H.B.,
Docket No. 19-0356 (issued March 20, 2020).

4

compensation with a clear statement showing how the overpayment was calculated. Although the
record establishes that appellant received SSA age-related retirement benefits, which were
attributable to his federal service, it is not clear how the amount of the overpayment was derived.
OWCP has not offered an explanation for the discrepancy in the SSA benefit figures of record and
used in its calculations.
For these reasons, the Board finds that it remains unclear whether the overpayment was
calculated correctly for the period November 2, 2018 through May 25, 2019. Accordingly, the
Board finds that the case must be remanded to OWCP. On remand , OWCP shall clarify the
discrepancy between the figures provided by SSA to OWCP. It shall then determine the amount
of the overpayment of compensation and issue a new preliminary overpayment determination, with
an overpayment action request form, a new Form OWCP-20, and instructions for appellant to
provide updated supporting documentation. Following this, and other such further development
as deemed necessary, OWCP shall issue a de novo decision.11
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation because he concurrently received SSA age-related retirement benefits while also
receiving FECA benefits without an appropriate offset. The Board further finds that the case is
not in posture for decision regarding the amount of the overpayment. 12
ORDER
IT IS HEREBY ORDERED THAT the October 26, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. This case is remanded
for further proceedings consistent with this decision of the Board.
Issued: December 20, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
11

See L.D., supra note 7; S.H., Docket No. 20-1189 (issued January 27, 2021).

12

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
STATION, Newport, RI, Employer
__________________________________________

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Appearances:
Elizabeth Stachura, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-2080
Issued: December 20, 2007

Case Submitted on the Record

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

JURISDICTION
On September 12, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs merit decision dated June 14, 2006 with respect to his claim for an
employment-related emotional condition. 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 established an emotional condition causally related to
compensable work factors.
FACTUAL HISTORY
On June 28, 2005 appellant, then a 44-year-old paralegal specialist, filed an occupational
disease claim (Form CA-2), alleging that he sustained major depression disorder and posttraumatic stress as a result of his federal employment. Appellant submitted a statement alleging
that beginning in June 2001 Captain Ruth Cooper began a campaign against him designed to
destroy his career and self-worth. He alleged that Captain Cooper illegally ordered a former

supervisor and other employees to have no contact with him. Appellant also alleged that the
staff judge advocate, Lieutenant Thomas Rutledge, told appellant in August 2001 that he
overheard Captain Cooper say she wanted appellant out of the naval station. According to
appellant, in the spring of 2002 he was removed from his employing establishment work duties
as a traffic court judge and during a discussion about his removal Captain Cooper screamed at
him, threw a binder and had to be physically restrained. He indicated that he had filed a
complaint against Lieutenant Rutledge for allegedly operating a real estate business at work and
he was retaliated against through disciplinary actions that included suspensions and proposed
removals. Appellant alleged that there was further retaliation due to a renovation that resulted in
him losing his office.
The record contains a complaint filed by appellant with the Office of Special Counsel of
Reprisal for Whistleblowing. He indicated on April 10, 2002 that he filed a complaint against
Lieutenant Rutledge for abusing his position by operating a real estate business at work. An
employing establishment “hotline completion report” dated August 23, 2002 found that the main
allegation was unsubstantiated, but did find that the evidence substantiated improper use of
government equipment and created an appearance of impropriety.
A hotline completion report dated August 26, 2003 contains findings that allegations
against Captain Cooper relating to improper spending of government funds were substantiated by
the record. The allegation that Captain Cooper retaliated against appellant in violation of the
Whistleblower Protection Act was found to be not substantiated. With respect to the 2002
meeting between appellant and Captain Cooper, the report noted conflicting recollections of the
meeting. Captain Cooper strongly denied throwing any object and stated that it was appellant
who screamed at her. One witness heard appellant yelling and screaming and another witness
reported hearing Captain Cooper yelling at appellant.
There are a number of statements from witnesses submitted to the record. A coworker,
Marie Hartnett, stated that in December 2001 she heard Captain Cooper state words to the effect
that appellant was “gay,” in early 2002 she heard the supervisor say he was not going to have his
job for long and that he was a “loser.” Coworkers Amy K. Pitts and Allison Morgan reported
that Lieutenant Rutledge stated that Captain Cooper hated appellant and she would promote
Lieutenant Rutledge if he harassed appellant. Another coworker, Alexander Joe, indicted that
Lieutenant Rutledge had stated that he would get promoted if he could “get [appellant].” A
Robert Coulter reported that in October 2002 Captain Cooper asked him about a closed door
conversation with appellant and said words to the effect of “you are not to talk to [appellant].” A
former supervisor, R. Lee Freitag, Jr., reported in a December 2, 2002 statement, that Captain
Cooper told him not to speak with appellant and threatened to fire him if he did.
In an October 20, 2005 letter, the employing establishment discussed the disciplinary
actions taken against appellant. He received a June 27, 2002 notice of proposed removal for
repeated acts of misconduct which was reduced to a 10-day suspension. A 10-day suspension
was issued in November 2002 for unauthorized absence and a notice of proposed removal for
excessive unauthorized absences was issued in March 2003 which was reduced to a 21-day
suspension. There were also letters of reprimand in April 2000 and March 2001, as well as a
five-day suspension on April 9, 2002.

2

By decision dated January 23, 2006, the Office denied the claim for compensation. It
found that appellant had not establish any compensable work factors. Appellant requested a
review of the written record. By decision dated June 14, 2006, the hearing representative
affirmed the January 23, 2006 decision.
LEGAL PRECEDENT
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he claims compensation was caused or adversely
affected by factors of her federal employment.1 This burden includes the submission of detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.2 A claimant must also
submit rationalized medical opinion evidence establishing a causal relationship between the
claimed condition and the established, compensable work factors.3
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness has
some connection with the employment but nevertheless does not come within the coverage of
workers’ compensation. These injuries occur in the course of the employment and have some kind
of causal connection with it but nevertheless are not covered because they are found not to have
arisen out of the employment. Disability is not covered where it results from an employee’s
frustration over not being permitted to work in a particular environment or to hold a particular
position, or secure a promotion. On the other hand, where disability results from an employee’s
emotional reaction to his regular or specially assigned work duties or to a requirement imposed by
the employment, the disability comes within the coverage of the Federal Employees’
Compensation Act.4
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors causing a condition or disability, the Office, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed compensable
factors of employment and are to be considered by a physician when providing an opinion on
causal relationship and which working conditions are not deemed factors of employment and may
not be considered.5 If a claimant does implicate a factor of employment, the Office should then
determine whether the evidence of record substantiates that factor. When the matter asserted is a
compensable factor of employment and the evidence of record establishes the truth of the matter
asserted, the Office must base its decision on an analysis of the medical evidence.6
1

Pamela R. Rice, 38 ECAB 838 (1987).

2

Roger Williams, 52 ECAB 468 (2001); Anna C. Leanza, 48 ECAB 115 (1996).

3

See Bonnie Goodman, 50 ECAB 139, 141 (1998).

4

Lillian Cutler, 28 ECAB 125 (1976).

5

See Norma L. Blank, 43 ECAB 389-90 (1992).

6

Id.

3

A reaction to an administrative or personnel matter is generally not covered as it is not
related to the performance of regular or specially assigned duties.7 Nevertheless, if the evidence
demonstrates that the employing establishment erred, acted abusively or unreasonably in the
administration of a personnel matter, any physical or emotional condition arising in reaction to
such error or abuse may be covered.8
ANALYSIS
In the present case, appellant’s allegations primarily involve actions of a supervisor,
Captain Cooper. The initial question is whether he has substantiated with probative evidence
any compensable work factors. If there are compensable work factors then the medical evidence
is examined to determine if there is probative evidence on causal relationship between a
diagnosed condition and the compensable work factors.
According to appellant, he was subject to harassment from his supervisor commencing in
June 2001. He also alleges retaliation for the filing of a complaint in April 2002 regarding the
activities of Lieutenant Rutledge, as well as a complaint against Captain Cooper for authorizing
improper spending. A claim of harassment or retaliation must be substantiated by probative and
reliable evidence.9 In this case, the record does not contain sufficient evidence to establish a
compensable work factor based on harassment or retaliation. While appellant filed a claim for
reprisal with the Office of Special Counsel, no findings of reprisal were submitted to the record.
The employing establishment’s report found the allegations were unsubstantiated. The record
does not contain other probative evidence sufficient to establish a compensable factor based on
harassment or retaliation in this case.
As noted, a specific administrative action of the employing establishment may be a
compensable work factor if the evidence establishes error or abuse by the employing
establishment. The record indicated that appellant was subject to disciplinary actions, including
notices of removal that were reduced to suspensions. There is no admission or acknowledgment
of error by the employing establishment and the mere fact that an administrative action is later
modified or rescinded does not, in and of itself, establish error or abuse.10 There is no reliable
evidence in the record that any of the disciplinary actions were erroneous or abusive.
Appellant alleged that there were “illegal” orders given to employees not to talk to him.
There are witness statements such as from Mr. Freitag and Mr. Coulter, that Captain Cooper told
them not to talk to appellant. The statements are not detailed and the context of these statements
is not clear. The evidence does not establish error or abuse in this regard.

7

See Brian H. Derrick, 51 ECAB 417, 421 (2000).

8

Margreate Lublin, 44 ECAB 945, 956 (1993).

9

Lori A. Facey, 55 ECAB 217 (2004).

10

See Michael Thomas Plante, 44 ECAB 510 (1993); Richard J. Dube, 42 ECAB 916 (1991) (reduction of a
disciplinary letter to an official discussion did not constitute abusive or erroneous action by the employing
establishment).

4

Additional witness statements report that the supervisor made negative comments about
appellant. There is no indication that any comments were made directly to appellant or any
evidence that he was subject to verbal abuse. It is well established that not every statement
uttered in the workplace will give rise to coverage under the Act.11 The record also contains
statements indicating that Lieutenant Rutledge had stated that Captain Cooper did not like
appellant and felt he would get promoted if he harassed appellant. Again, these statements were
not made to appellant and with respect to a claim of harassment do not discuss any specific
action taken by a supervisor to support a claim of harassment.
A specific allegation made by appellant was that his supervisor screamed at him and
threw a binder during a 2002 meeting regarding his work as a traffic court judge. The employing
establishment report, however, noted conflicting versions of the incident and the supervisor
denied throwing any objects. The evidence of record does not establish error or abuse with
respect to this allegation.
The Board accordingly finds that the evidence of record is not sufficient to establish a
compensable work factor. The evidence does not establish harassment or retaliation or
substantiate a claim of error or abuse in the administration of a personnel matter. Since appellant
has not established a compensable work factor, the Board will not address the medical
evidence.12
CONCLUSION
The evidence of record does not substantiate a compensable work factor and therefore
appellant has not met his burden of proof to establish an emotional condition in the performance
of duty.

11

Charles D. Edwards, 55 ECAB 258 (2004).

12

See Margaret S. Krzycki, 43 ECAB 496 (1992).

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 14 and January 23, 2006 are affirmed.
Issued: December 20, 2007
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
DEPARTMENT OF THE ARMY, CORPS OF
ENGINEERS, Galveston, TX, Employer
__________________________________________

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Appearances:
Stephanie Leet, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0372
Issued: October 3, 2018

Case Submitted on the Record

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

JURISDICTION
On December 12, 2017 appellant, through counsel, filed a timely appeal from a June 21,
2017 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days elapsed from the last merit decision dated July 18, 2014, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The record provided the Board includes evidence received after OWCP issued its June 21, 2017 decision. The
Board’s jurisdiction is limited to the evidence in the case record that was before OWCP at the time of its final decision.
Therefore, the Board is precluded from reviewing evidence not before OWCP at the time of the June 21, 2017 for the
first time on appeal. 20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
because it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On November 4, 2003 appellant, a 45-year-old civil engineer, filed a traumatic injury claim
(Form CA-1) alleging that she injured her tailbone while at work on October 31, 2003 as a result
of “boating on rough seas” when the boat hit a wave it sent her into the air and slamming her into
her seat “landing right on [her] tailbone.” OWCP accepted the claim for fractured coccyx and
lumbar strain.
On June 27, 2006 appellant filed a claim for a schedule award (Form CA-7).
By decision dated September 21, 2007, OWCP denied appellant’s schedule award claim
because the medical evidence of record failed to establish a ratable impairment of a scheduled
member.
On April 8, 2014 appellant filed a notice of recurrence (Form CA-2a) alleging that she was
totally disabled for work as of July 15, 2009 due to her need for additional medical treatment. She
further indicated that the date of her first medical treatment following the recurrence was
August 15, 2009.
By decision dated July 18, 2014, OWCP denied the claim because the medical evidence of
record failed to establish that appellant required additional medical treatment due to a worsening
of her accepted work-related conditions, without intervening cause.
On July 24, 2015 appellant requested reconsideration and submitted additional medical
evidence, most of which predated the date of the claimed recurrence of disability.
By decision dated August 4, 2015, OWCP denied appellant’s request for reconsideration
because it was untimely filed and failed to demonstrate clear evidence of error.
In a January 18, 2016 letter, received by OWCP on March 16, 2016, counsel requested that
OWCP expand the acceptance of appellant’s claim to include bulging discs at L3-4, L4-5, L5-S1
with radiculopathy, chronic pain syndrome, spondylosis of the lumbar spine, and sacroiliitis.
In an undated letter, received by OWCP on June 9, 2017, counsel reiterated the request for
OWCP to expand the acceptance of appellant’s claim to include additional medical conditions
because appellant’s “neck and back condition start[ed] as back sprain and closed fracture sacrum
coccyx with spinal cord injury” and “after subsequent testing and examinations were done, there
are now diagnos[e]s of bulging discs at L3-4, L4-5, L5-S1 with radiculopathy, chronic pain
syndrome, spondylosis of the lumbar spine, and [sacroiliitis].”
Appellant submitted a November 6, 2015 report from Dr. Lenny Jue, a Board-certified
anesthesiologist and pain medicine specialist, who indicated that she sustained a work-related
injury on October 31, 2003. Dr. Jue opined that the injury caused a diagnosis of closed fracture of
the sacrum and coccyx with spinal cord injury and sprain of the back, which were initially stable.
2

He concluded that over the past few years appellant’s conditions included bulging disc
radiculopathy, chronic pain syndrome, and sacroiliitis that restarted around July 15, 2009, but was
caused by the original injury on October 31, 2003. Dr. Jue opined that her current injuries were
part of the normal progression of her accepted diagnoses.
In a January 4, 2016 report, Dr. Jue diagnosed lumbar spondylosis and lumbar
radiculopathy.
Appellant also submitted a June 22, 2016 report from an unidentifiable healthcare provider
who advised that she was capable of sedentary duty with physical restrictions for walking,
standing, bending, and climbing.
Appellant further resubmitted medical reports and diagnostic testing results dated
November 17, 2003, January 5 and June 14, 2004, July 11, 2005, January 6 and August 2, 2006,
October 20 and November 30, 2011, February 13, 2013, and March 7, 2014. Additionally, she
submitted a medical information sheet from Dr. Mikhail Fukshansky, a physiatrist and pain
medicine specialist, who recommended that appellant work from home to reduce muscle strain
and manage her pain level, and that she should only report to the office when necessary.
By decision dated June 21, 2017, OWCP accepted counsel’s letters received on March 16,
2016 and June 9, 2017 as requests for reconsideration and denied them because they were untimely
filed and failed to demonstrate clear evidence of error. It noted that appellant’s case had been
closed prior to her requests for reconsideration on July 18, 2014 and it could not expand conditions
on a closed case.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.4 OWCP, through its regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a).5 One such limitation provides that an application
for reconsideration must be received within one year of the date of OWCP’s decision for which
review is sought.6 The Board has found that the imposition of this one-year time limitation does
not constitute an abuse of the discretionary authority granted OWCP under 5 U.S.C. § 8128(a).7
Section 10.607(b) provides that OWCP will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit
decision. The reconsideration request must establish that OWCP’s decision was, on its face,
erroneous.8

4

See Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

5

See Annette Louise, 54 ECAB 783, 789-90 (2003).

6

20 C.F.R. § 10.607(a).

7

See Jesus D. Sanchez, supra note 4; F.R., Docket No. 09-575 (issued January 4, 2010).

8

20 C.F.R. § 10.607(b).

3

To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by OWCP.9 The evidence must be positive, precise, and explicit and
must be manifest on its face that OWCP committed an error.10 Evidence that does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error.11 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.12 This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP.13
To demonstrate clear evidence of error, the evidence submitted must not only be of
sufficient probative value to create a conflict in medical opinion or establish a clear procedural
error, but must be of sufficient probative value to prima facie shift the weight of the evidence in
favor of the claimant and raise a substantial question as to the correctness of OWCP’s decision.14
The Board makes an independent determination of whether a claimant has submitted clear
evidence of error on the part of OWCP such that OWCP abused its discretion in denying merit
review in the face of such evidence.15
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed. OWCP’s regulations and procedures establish a one-year time
limit for requesting reconsideration, which begins on the date of the original OWCP decision.16
The Board has held that, for OWCP decisions issued on or after August 29, 2011, the date of the
application for reconsideration is the “received date” as recorded in the Integrated Federal
Employees’ Compensation System.17 The most recent merit decision was OWCP’s July 18, 2014

9

See Nancy Marcano, 50 ECAB 110, 114 (1998); Dean D. Beets, 43 ECAB 1153, 157-58 (1992).

10

See Fidel E. Perez, 48 ECAB 663, 665 (1997); M.L., Docket No. 09-956 (issued April 15, 2010).

11

See Richard L. Rhodes, 50 ECAB 259, 264 (1999).

12

See Leona N. Travis, 43 ECAB 227, 241 (1991).

13

See Jimmy L. Day, 48 ECAB 652 (1997); Nelson T. Thompson, 43 ECAB 919, 922 (1992).

14

See Veletta C. Coleman, 48 ECAB 367, 370 (1997).

15

See Pete F. Dorso, 52 ECAB 424 (2001); Thankamma Matthews, 44 ECAB 765, 770 (1993).

16

20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB 247 (2005).

17
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016); see
Veletta C. Coleman, supra note 14.

4

decision denying appellant’s recurrence claim. Appellant had one year from the date of this
decision to make a timely request for reconsideration. Since her requests were not received by
OWCP until March 16, 2016 and June 9, 2017, they were filed outside the one-year time period.18
As appellant’s March 16, 2016 and June 9, 2017 requests for reconsideration were received more
than one year after the July 18, 2014 merit decision, they were untimely filed. Consequently, she
must demonstrate clear evidence of error by OWCP in the denial of her claim.19
The record shows that OWCP mailed its July 18, 2014 decision to appellant’s last known
address. Accordingly, the Board finds that OWCP’s July 18, 2014 decision was properly issued
on that date and her March 16, 2016 and June 9, 2017 requests for reconsideration were not timely
filed as they were not received with one year of the date of issuance of that decision.
By decision dated July 18, 2014, OWCP denied appellant’s recurrence claim because the
evidence of record failed to establish that there was a material change in the nature and extent of
her injury-related condition, causing renewed disability for work or necessary medical treatment
as of July 15, 2009. In support of her untimely requests for reconsideration, appellant submitted
reports from Dr. Jue who diagnosed lumbar spondylosis and lumbar radiculopathy and opined that
these conditions were causally related to her accepted employment injury. She also submitted a
June 22, 2016 report from an unidentifiable healthcare provider who advised that she was capable
of sedentary duty with physical restrictions for walking, standing, bending, and climbing.
Appellant further resubmitted medical reports and diagnostic testing results dated November 17,
2003, January 5 and June 14, 2004, July 11, 2005, January 6 and August 2, 2006, October 20 and
November 30, 2011, February 13, 2013, and March 7, 2014. She also submitted June 21, 2011
report from Dr. Fukshansky which discussed his preference that she primarily work from home.
The Board finds that this evidence does not demonstrate clear evidence of error because it does
not show that OWCP committed an error in denying appellant’s recurrence claim, nor raise a
substantial question as to the correctness of OWCP’s decision.
To demonstrate clear evidence of error, it is insufficient merely to show that the evidence
could be construed so as to produce a contrary conclusion. The term clear evidence of error is
intended to represent a difficult standard.20 None of the evidence submitted manifests on its face
that OWCP committed an error in denying appellant’s claim for a recurrence of total disability.
Appellant has not otherwise submitted evidence of sufficient probative value to raise a substantial
question as to the correctness of OWCP’s decision. Thus, the evidence is insufficient to
demonstrate clear evidence of error.

18

OWCP’s procedures were changed effective August 29, 2011. Section 10.607 of the new regulations provides
that the date of the reconsideration request for timeliness purposes was changed from the date the request was mailed
to the date the request was received by OWCP. See 20 C.F.R. § 10.607 (2011); see also C.B., Docket No. 13-1732
(issued January 28, 2014) (where the Board held that, for OWCP decisions issued on or after August 29, 2011, the
date of the application for reconsideration is the “received date” as recorded in IFECS). Therefore, OWCP utilized
the new regulations and found that, as OWCP received appellant’s request for reconsideration on May 12, 2017, or
over one year after the May 9, 2016 decision, appellant’s request was untimely filed.
19

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

20
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5.a (February 2016); see
Dean D. Beets, supra note 9.

5

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration
because it was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the June 21, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: October 3, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.M., Appellant
and
U.S. POSTAL SERVICE, QUINCY POST
OFFICIE, Quincy, IL, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 18-0833
Issued: April 18, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
On March 13, 2018 appellant, through counsel, filed a timely appeal from a February 2,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of
the Appellate Boards docketed the appeal as No. 18-0833.
On October 19, 2012 appellant, then a 52-year-old city carrier, filed an occupational
disease claim (Form CA-2) alleging that on July 5, 2012 she first became aware that her bilateral
knee condition was causally related to her federal job duties which required walking with a heavy
mailbag on uneven surfaces.2 In her accompanying statement, she alleged that she had worked as
a letter carrier for 28 years. Appellant noted that this position required walking on uneven ground,
up and down steps, and through ice and snow carrying a loaded mailbag. She asserted that these
duties caused her knee conditions.

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

Appellant noted that she originally submitted this claim as a recurrence of a May 2012 employment injury.

Appellant has two prior OWCP claims accepted for right knee conditions. On May 1, 2004
she sustained a work-related right knee osteochondritis disscan with resulting right knee
chondroplasty of patella and medial femoral condyle on September 1, 2004 in OWCP File No.
xxxxxx081. On September 29, 2006 appellant sustained a right medial collateral ligament strain
and underwent a second right knee surgery on January 31, 2007 for medial meniscal tear in OWCP
File No. xxxxxx841.
The Board has duly considered the matter and finds that this case is not in posture for
decision. OWCP’s procedures provide that cases should be combined when correct adjudication
of the issues depends on frequent cross-referencing between files. For example, if a new injury
case is reported for an employee who previously filed an injury claim for a similar condition or
the same part of the body, doubling is required.3 In the instant case, appellant had two accepted
claims for right knee conditions, assigned OWCP File No. xxxxxx081 and OWCP File No.
xxxxxx841. She then filed an occupational disease claim for the same body part, assigned File No.
xxxxxx493 currently before the Board. The evidence pertaining to File Nos. xxxxxx081 and
xxxxx841, however, is not in the case record presently before the Board.
For a full and fair adjudication, the case must be returned to OWCP to administratively
combine the current case record with File Nos. xxxxxx081 and xxxxx841, and determine whether
appellant has provided sufficient rationalized medical opinion evidence to establish that she
sustained a permanent aggravation or acceleration of her bilateral knee arthritis due to her federal
employment. Following this and such further development as OWCP deems necessary, it shall
issue a de novo decision.

3
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8(c)
(February 2000).

2

IT IS HEREBY ORDERED THAT the February 2, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision of the Board.
Issued: April 18, 2019
Washington, DC

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

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Ayer, MA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-755
Issued: March 28, 2011

Case Submitted on the Record

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

JURISDICTION
On January 27, 2010 appellant filed a timely appeal from the January 14, 2010 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he has
more than a 47 percent permanent impairment of his gonads for which he received a schedule
award; and (2) whether appellant’s schedule award compensation was paid at a proper pay rate.
FACTUAL HISTORY
The Office accepted that on July 25, 2005 appellant, then a 31-year-old correctional
officer, sustained a kidney injury (open wound into cavity), back contusion and concussion
without loss of consciousness due to falling 15 to 20 feet during a rope climb and landing on his
back and the back of his head. He stopped work after the accident and returned to his regular
full-time work on August 10, 2005.

In an October 24, 2007 report, Dr. Matthew Kamil, an attending Board-certified
endocrinologist, stated that after his July 25, 2005 fall appellant developed fatigue and decreased
libido. He noted that laboratory tests determined that appellant’s pituitary axis was damaged and
that he had needed testosterone replacement since the accident.1 Dr. Kamil stated, “Based on the
course of events, it is highly likely that the accident/head trauma caused his current diagnosis of
hypogonadism.” In November 2007 appellant’s claim was expanded to include hypogonadism,
testicular dysfunction, anterior pituitary disorder, impotence of organic origin, neck sprain and
dislocation of multiple cervical vertebrae.2
In a September 23, 2008 report, Dr. Christopher R. Brigham, an attending Board-certified
occupational medicine physician, indicated that under the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment appellant has a three percent
permanent impairment of the whole person when one considers that he has undergone
testosterone replacement therapy and has normal sexual functioning with this therapy. He
further noted that, absent appellant’s medication regimen, his rating could be as high as 30
percent under the fifth edition of the A.M.A., Guides. Dr. Brigham stated:
“The sixth edition of the A.M.A., Guides represents a paradigm shift in how
specific conditions are rated. Gonadal disorders are specifically addressed in
Table 10-12, Criteria for Rating Impairment due to Gonadal Disorders (6th ed.,
239). Based on the history, required treatment and issues relating to infertility,
[appellant’s] condition results in an estimated 15 percent impairment.”
On May 28, 2009 appellant filed a claim for a schedule award due to his accepted
conditions.
In a September 24, 2009 report, Dr. George L. Cohen, a Board-certified internist serving
as an Office medical adviser, stated that appellant’s work-related hypogonadism was being
treated with weekly testosterone injections. He indicated that on August 11, 2008 Dr. Kamil had
reported that appellant’s erectile dysfunction was resolved. Dr. Cohen noted that he was
applying the sixth edition of the A.M.A., Guides to determine impairment and stated:
“Using Table 10-12, page 239, the impairment rating for gonadal disorder
established biochemically, moderate symptoms, treatment recommended is
assigned to Class 2 with a default value of [eight] percent. There is no evidence
of infertility requiring a higher class. Table 10-2B, page 217, assigns [two] points
BOTC (burden of treatment compliance) for parenteral injection once weekly.
BOTC of [two] points reduces the rating to Class 1 lowering the rating from
[eight] percent to [seven] percent whole person impairment. Gonadal, pituitary
and other endocrine impairments are only rated in the [sixth] edition for whole
1

Testing from November 2006 showed suppressed levels of luteinzing hormone, a hormone which acts upon the
cells responsible for the production of testosterone.
2

Appellant received weekly injections of 200 milligrams of testosterone enanthate. On August 11, 2008 he
reported to Dr. Kamil that his erectile condition was “back to normal.” Dr. Kamil indicated that appellant had an
impairment rating of five percent.

2

person impairment. The date of maximum medical improvement is August 11,
[20]08, the date of the examination for impairment.”
In an October 29, 2009 report, Dr. Cohen stated that on September 24, 2009 he had
determined that appellant had a seven percent whole person impairment for gonadal disorder.
He indicated that Office procedure required that in order to calculate impairment of an organ or
organ system corresponding to whole person impairment, the following ratio should be used:
“Claimant’s whole person impairment

7%

Maximum whole person impairments for organ system 15%

= X
100

“This results in 47 percent [i]mpairment of the gonads or gonadal system.”
In a November 12, 2009 decision, the Office awarded appellant a schedule award for a 47
percent permanent impairment of his gonads. The award ran for 24.44 weeks from August 11,
2008 to January 29, 2009 and was based on a weekly pay rate of $910.67. The decision
explained that the percentage of permanent impairment was based on the September 23, 2008
medical findings of Dr. Brigham and the rating calculations contained in the September 24 and
October 29, 2009 reports of Dr. Cohen.
Appellant, through counsel, requested reconsideration of his claim. In a December 1,
2009 report, Dr. Kamil noted that appellant had low sex drive and that Cialis medication was not
working. He indicated that appellant’s testosterone levels were normal. In a November 29, 2009
letter, counsel argued that the pay rate utilized in appellant’s schedule award did not include
night differential as well as other wage elements that should have been part of his pay rate. He
asserted that Dr. Cohen did not adequately consider “the fertility issue” and did not provide
adequate rationale for excluding the penis from his impairment rating.
The Office asked the employing establishment to submit information regarding the
amount of night differential as well as Sunday premium pay appellant received for the year prior
to his July 25, 2005 injury. In a response dated December 14, 2009, the employing
establishment stated that appellant’s annual salary at the date of injury on July 25, 2006 was
$42,256.00, or $$812.62 per week. Appellant was a GS 7/Step 2 employee with a weekly night
differential amount of $34.54 and weekly Sunday premium of $30.69 for one year prior to the
injury and his total weekly pay rate was $877.85. Attached with the pay rate information was a
copy of his quarterly shift assignment as a correctional officer for the year prior to July 28, 2005.
In response to a telephone inquiry on January 12, 2010 to further clarify the pay rate matter, the
employing establishment stated that the previously reported pay rate of $910.67 was an error and
in fact was applicable to another injury file (concerning an August 3, 2007 injury to the neck and
upper back). It confirmed that the correct weekly pay rate for the schedule award should be
$877.85.
The Office referred the case record, including the September 23, 2008 report of
Dr. Brighams, to Dr. David I. Krohn, a Board-certified internist serving as an Office medical
adviser, in order to determine whether appellant was entitled to additional schedule award for

3

loss of function of his penis. In his December 26, 2009 report, Dr. Krohn concluded that no
additional rating for impairment of the penis was warranted:
“I am asked whether or not the claimant is entitled to additional impairment rating
for loss of function of the penis.
“In my opinion, the functional loss to this claimant is fully encompassed by
determination of loss to the gonadal system using Table 10-12 and sufficiently
encompasses the work[-]related loss of function the claimant has suffered. In my
considered medical opinion, there is no practical rationale for assignment of an
additional impairment rating for the same condition using a different methodology
in the [A.M.A., Guides]. In fact, this is not allowed by the [A.M.A., Guides]
unless there is some functional loss not covered by the original impairment rating.
This is not the case.”
In a January 14, 2010 decision, the Office affirmed its November 12, 2009 decision
with respect to the finding that appellant had no more than a 47 percent permanent impairment
of his gonads. It indicated that the December 26, 2009 report of Dr. Krohn showed that it was
appropriate to exclude a rating for penis impairment as such a rating would be duplicative.
The Office addressed the pay rate of the schedule award and stated:
“Claimant’s employer was invited to submit the amount of night differential as
well as Sunday premium one year prior to claimant’s injury on July 25, 2005 and
provided 20 days to respond. In a response via fax dated December 14, 2009,
claimant’s employer stated claimant’s annual salary at the date of injury on
July 25, 2006 is $42,256, or $812.62 per week as a GS 7/Step 2 employee with
weekly night differential amount of $34.54 and weekly Sunday premium of
$30.69, for one year prior to the injury, total weekly pay rate of $877.85.
Attached with the pay rate information is a copy of claimant’s quarterly shift
assignment, one year prior to July 28, 2005 as correctional officers work a
quarterly rotation schedule. In response to telephone inquiry on January 12, 2010
to further clarify the pay rate, claimant’s employer stated previously reported pay
rate of $910.67 is an error and applicable to case [file number omitted] for which
claimant sustained an injury to his neck and upper back on August 3, 2007 and
confirmed that correct weekly pay rate for schedule award should be $877.85.
Based on the new pay rate, it is determined that without fault overpayment to be
created as a result of the schedule award previously paid in the amount of
$17,828.98 less $17,187.43, the amount should have been paid for 47 percent
permanent partial impairment of the gonads with new pay rate and overpayment
in the amount of $641.55 will be declared under separate cover.3

3

The record does not contain a final decision of the Office regarding an overpayment and therefore this matter is
not currently before the Board. See 20 C.F.R. § 501.2(c).

4

LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing regulations5 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.6 The
effective date of the sixth edition of the A.M.A., Guides is May 1, 2009.7
Under the sixth edition of the A.M.A., Guides, impairment of the gonads is considered
under Chapter 10. Table 10-12 (Criteria for Rating Impairment due to Gonadal Disorders) on
page 239 provides for placing gonadal disorders into diagnostic-based classes. A claimant’s
history will fall under Class 2 under the following criteria: Gonadal disorder established
biochemically; moderate symptoms or physical sequelae, treatment highly recommended. The
maximum allowable impairment for gonadal disorders is 15 percent of the whole person.8 Under
Table 10-2B (Parenteral Medications), the rating derived from Table 10-12 is adjusted to account
for the Burden of Treatment Compliance. Points are assigned according to the burdensomeness
of a given parenteral treatment and, if appropriate, a default impairment rating obtained from
Table 10-12 may be lowered or raised.9
Section 10.8 on page 238 of Chapter 10 discusses how the sections relating to endocrine
problems interact with the sections relating to the anatomic functions of sexual organs:
“Care must be taken when assigning the reproductive system of either the male of
female to avoid duplicating impairment, or more importantly, misusing this
portion of the endocrine chapter and sections of the renal chapter that deal with
sex organs ([s]ections 7.7 and 7.8). As can be seen from a perusal of these
sections in the Urinary and Reproductive Systems chapter, Chapter 7 deals
primarily with the anatomic aspects of these organs. This chapter deals primarily
with the hormonal aspects of the reproductive system.”10

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404 (1999).

6

Id.

7

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

8

A.M.A., Guides 239, Table 10-12 (6th ed. 2009).

9

Id. at 217, Table 10-2B.

10

See A.M.A., Guides 238-39

5

Under Office procedure, a whole person impairment measurement can be directly
translated into an organ rating in the case of a vital organ where the total impairment of the organ
produces 100 percent impairment of the whole person. When the maximum whole person rating
of the organ is less than 100 percent, direct translation of the whole person measurement into a
percentage of impairment to the organ is not valid. In these cases, to obtain the percentage of
impairment to an organ corresponding to a given whole person impairment, the following
mathematical ratio should be used: A divided by B = X divided by 100. In this equation, A is
the actual whole person impairment of the claimant, B is the maximum whole person impairment
for the organ, and X is the organ rating to be determined.11
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained a kidney injury (open wound into cavity),
back contusion, concussion without loss of consciousness, neck sprain, dislocation of multiple
cervical vertebrae, hypogonadism, testicular dysfunction, anterior pituitary disorder and
impotence of organic origin due to falling 15 to 20 feet during a rope climb and landing on his
back and the back of his head. In a November 12, 2009 decision, the Office awarded appellant a
schedule award for a 47 percent permanent impairment of his gonads. The percentage of
permanent impairment was based primarily on the September 23, 2008 medical findings of
Dr. Brigham, an attending Board-certified occupational medicine physician, and the rating
calculations contained in the September 24 and October 29, 2009 reports of Dr. Cohen, a Boardcertified internist serving as an Office medical adviser.
The Board finds that Dr. Cohen properly evaluated the medical evidence of record and
applied the relevant standards of the sixth edition of the A.M.A., Guides to determine that
appellant had a 47 percent impairment of his gonads. Dr. Cohen properly found that, under
Table 10-12 on page 239, appellant’s condition (which included a biochemically established
gonadal disorder, moderate symptoms and highly recommended treatment) fell under Class 2
with a default value of eight percent.12 He correctly found that, under Table 10-28 on page 217,
appellant was assigned two points for a Class 1 Burden of Treatment Compliance (due to
injection of testosterone once a week) and indicated that therefore the default rating value under
Table 10-12 was lowered from an eight percent whole person impairment to a seven percent
whole person impairment.13 Dr. Cohen then properly applied the formula found in Office
procedure to convert this whole person impairment figure to a 47 percent impairment of the
gonads.14
On appeal, counsel argued that the 15 percent whole person rating provided by
Dr. Brigham in his September 23, 2008 report should have been adopted. However, Dr. Brigham
11

See FECA Bulletin No. 09-03 (issued March 15, 2009). Federal (FECA) Procedure Manual, Part 3 -- Medical,
Schedule Awards, Chapter 3.700.4(c) (March 2005).
12

See supra note 8.

13

See supra note 9.

14

See supra note 11. In applying the formula, Dr. Cohen took into account that the maximum allowable
impairment for gonadal disorders under Table 10-12 is 15 percent of the whole person. See supra note 8.

6

did not explain how this rating was derived in accordance with the relevant standards. Counsel
also argued that a rating for penis impairment should have been included, but Dr. Krohn, a
Board-certified internist serving as an Office medical adviser, properly explained that the
inclusion of such a rating would have been duplicative. Appellant’s accepted gonadal condition
was endocrinal in nature and Dr. Krohn provided an opinion that there was no functional loss
which was not fully accounted for by applying the standards for evaluating endocrinal conditions
(found in Chapter 10 of the A.M.A., Guides).15
LEGAL PRECEDENT -- ISSUE 2
Section 8105(a) of the Act provides: “If the disability is total, the United States shall pay
the employee during the disability monthly monetary compensation equal to 66 2/3 percent of his
monthly pay, which is known as his basic compensation for total disability.”16 Section
8101(4) of the Act defines “monthly pay” for purposes of computing compensation benefits as
follows: “[T]he monthly pay at the time of injury, or the monthly pay at the time disability
begins, or the monthly pay at the time compensable disability recurs, if the recurrence begins
more than six months after the injured employee resumes regular full-time employment with the
United States, whichever is greater....”17
The word “disability” is used in several sections of the Act. With the exception of certain
sections where the statutory context or the legislative history clearly shows that a different
meaning was intended, the word as used in the Act means “Incapacity because of injury in
employment to earn wages which the employee was receiving at the time of such injury.” This
meaning, for brevity, is expressed as “disability for work.”18
ANALYSIS -- ISSUE 2
The Board finds that the Office properly calculated appellant’s pay rate for compensation
purposes. The evidence of record reveals that the Office calculated the pay rate with reference to
appellant’s date-of-injury pay rate (i.e., with reference to his pay as of July 25, 2005). There is
no indication that he would be entitled to a recurrent pay rate as he did not sustain a recurrence
of disability that began more than six months after he resumed regular full-time employment.
The Office gained information from the employing establishment regarding appellant’s weekly
15

See supra note 10 discussing how the sections of the A.M.A., Guides relating to endocrine problems interact
with the sections relating to the anatomic functions of sexual organs. On appeal, counsel also questioned the
number of erectile dysfunction pills that appellant received each month. However, the record does not contain a
final decision of the Office regarding this matter and it is not currently before the Board. See 20 C.F.R. § 501.2(c).
Counsel argued that a December 1, 2009 report of Dr. Kamil, an attending Board-certified endocrinologist, showed
that appellant’s rating should reflect erectile dysfunction. However, a review of the medical record does not show
that appellant’s condition as delineated in that report was usual or that it was related to the accepted hypogonadism
condition. Dr. Kamil had reported that appellant’s testosterone level was normal at that time.
16

5 U.S.C. § 8105(a). Section 8110(b) of the Act provides that total disability compensation will equal three
fourths of an employee’s monthly pay when the employee has one or more dependents. 5 U.S.C. § 8110(b).
17

5 U.S.C. § 8101(4).

18

See Charles P. Mulholland, Jr., 48 ECAB 604, 606 (1997).

7

night differential pay and weekly Sunday premium pay and properly used the figures to calculate
his pay rate. It discovered that an improper higher pay rate ($910.67 per week) had been applied
for the November 12, 2009 schedule award but made a correcting calculation to apply the proper
pay rate ($877.85). Appellant has not submitted any evidence showing that the Office’s
calculation of appellant’s pay rate was improper and the evidence of record does not otherwise
reveal that such an error was made.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he has
more than a 47 percent permanent impairment of his gonads for which he received a schedule
award. The Board further finds that appellant’s schedule award compensation was paid at a
proper pay rate.
ORDER
IT IS HEREBY ORDERED THAT the January 14, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 28, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8