United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.P., Appellant
and
DEPARTMENT OF THE ARMY, FINANCE &
ACCOUNTING DIVISION, Fort Huachuca, AZ,
Employer
__________________________________________

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

Docket No. 20-0127
Issued: August 10, 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 October 21, 2019 appellant filed a timely appeal from May 17 and June 13, 2019 merit
decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant forfeited her right
to compensation for the periods November 12, 1999 through March 16, 2006 and December 31,
1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the June 13, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedures 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.

2006 through February 10, 2014, pursuant 5 U.S.C. § 8106(b)(2) of FECA, because she knowingly
failed to report her employment activities and earnings; (2) whether OWCP properly found that
appellant received an overpayment of compensation in the amount of $183,933.85 from
November 12, 1999 through March 16, 2006 and December 31, 2006 through February 10, 2014
as she forfeited her entitlement to compensation for these periods; (3) whether OWCP properly
found appellant at fault in the creation of the $183,933.85 overpayment, thereby precluding waiver
of recovery of the overpayment; (4) whether OWCP properly required recovery of the $183,933.85
overpayment by deducting $382.15 from appellant’s continuing compensation payments every 28
days; (5) whether OWCP properly found that appellant received an overpayment of wage-loss
compensation in the amount of $7,511.77 for the period January 1, 2016 through April 27, 2019,
for which she was without fault, because she concurrently received FECA wage-loss compensation
benefits and Social Security Administration (SSA) age-related retirement benefits without
appropriate offset; (6) whether OWCP properly denied waiver of recovery of the $7,511.77
overpayment; and (7) whether OWCP properly required recovery of the $7,511.77 overpayment
by deducting $263.26 from appellant’s continuing compensation payments every 28 days.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior order are incorporated herein by reference. The relevant facts are as follows.
On June 27, 1988 appellant, then a 38-year-old voucher examiner, filed an occupational
disease claim (Form CA-2) alleging that she sustained depression, anxiety, and post-traumatic
stress disorder (PTSD) causally related to factors of her federal employment. OWCP accepted the
clam for a recurrent episode of major depression. It paid appellant wage-loss compensation
beginning July 30, 1989.
On February 12, 2001, January 18, 2002, March 10, 2003, June 23, 2004, March 3, 2005,
March 16, 2006, March 31, 2008, March 25, 2009, February 28, 2010, February 6, 2011,
February 10, 2012, January 26, 2013, and February 10, 2014, appellant signed EN1032 forms
which contained language advising her what type of employment activities, earnings, and
volunteer activities that she was required to report for each 15-month period prior to the time she
signed each form. The EN1032 forms instructed her to report all employment for which she
received a salary, wages, income, sales commissions, piecework, or payment of any kind.
Appellant was directed to report all self-employment or involvement in business enterprises,
including (but not limited to) farming, sales work, operating a business, and providing services in
exchange for money, goods, or other services. The forms contained certification clauses informing
her of the consequences of not accurately reporting her employment activities, such as being
subjected to criminal penalties and losing the right to receive workers compensation. On the
EN1032 forms, appellant indicated that, during the previous 15-month period covered by each
form, she had not worked for an employer or been self-employed, had no involvement in a business
enterprise, and had not engaged in volunteer work.

3

Order Remanding Case, Docket No. 17-1396 (issued May 4, 2018).

2

In an investigative report dated August 23, 2016, J.B., special agent with the Office of
Inspector General (OIG) for the Department of Labor, advised that a criminal investigation
revealed that appellant had provided “false statements to OWCP regarding her work activities and
abilities.” He related that she had founded and served as the pastor/reverend for the church of the
Beloved United in Christ (the church) in Tucson, Arizona and “actively made attempts to conceal
her work activities and the very existence of the [c]hurch.” J.B. advised that appellant had operated
the church since at least November 2001. He asserted that annual reports provided to the State of
Arizona in 2002-04, and 2007 had identified her as the reverend or director of the church, and that
annual reports in 2008-10 listed her life partner, C.M., as the director. A post office box for the
church from December 2, 1999 until April 22, 2011 identified appellant as the minister. J.B.
indicated that advertisements in the telephone directory for the church listed her e-mail address
and indicated that the services provided included counseling. He described surveillance performed
in November and December 2009.
J.B. related that appellant had, on a quality assurance questionnaire, specified that she had
not attended school or performed any activity since her injury; however, she had attended
Claremont School of Theology from May 1996 to May 1999, earning a Master of Divinity degree.
He described interviews with former church members in 2011 confirming that appellant had
worked full time as the reverend/pastor of the church.
J.B. advised that appellant had purchased the property used as the church. In May 10, 2006
she refinanced the property for a cash-out and debt consolidation. J.B. asserted on the refinance
paperwork that she was employed as a reverend with the church and received a monthly pastoral
allowance of $1,055.00. An April 17, 2006 letter from the treasurer of the church advised that the
church had paid the mortgage on appellant’s house since 2001 and would continue to pay the
mortgage for the next three years and thereafter until the mortgage was paid. In refinancing the
property, appellant received $6,842.48 in cash and paid $27,313.00 to creditors.
J.B. asserted that appellant had applied to open consumer accounts in March 2003,
July 2009, and September 2009 with Wells Fargo bank, listing her employer as the church. She
also opened business accounts with Wells Fargo for the church, with herself as an authorized
signatory.
From November 9, 2004 through May 12, 2010, appellant had transferred
approximately $18,065.00 from her personal account to the church account, and from January 14,
2004 to December 14, 2010, she had transferred approximately $28,781.00 from the church
account to her personal checking account. In 2007 a code enforcement inspector ordered appellant
to remove a sign for the church in front of the house as it violated ordinances. An entry on a
website in 2012 for the church provided appellant’s e-mail address for contact information. It
listed service times on Sunday and Wednesday and indicated that pastoral counseling was
available. On April 12, 2012 a realtor’s website listed the residence used as the church for sale,
noting that the property was used “as a Church hall.” The OIG contacted the realtor, who related
that a woman ran the property as a church but was considering retiring and wanted to sell the
property. In August 2013 OIG agents spoke with appellant, who informed them that she was an
ordained minister and volunteered at the church, which had a congregation of 8 to 10 people.
J.B. noted that appellant was indicted on January 8, 2015 by a grand jury with the District
of Arizona-Tucson for violating 18 U.S.C. § 641, theft of money or property of the United States,

3

and 18 U.S.C. § 1920, making a false statement to obtain benefits from OWCP. He advised that
the government had dismissed the indictment on April 22, 2016.
J.B. submitted evidence obtained during the investigation. A March 3, 2000 addendum to
a certificate of authority form from Wells Fargo bank indicated that appellant was an authorized
signer on a church account created April 13, 2004 and provided her title as reverend. On March 9,
2000 she applied for another business account for the church with Wells Fargo, identifying herself
as pastor. A July 13, 2001 certificate of authority form listed appellant as pastor. On applications
for a consumer bank account dated March 20, 2003, July 15 and September 18, 2009, appellant
identified her current employer as the church.
The OIG office submitted a form listing transfers from appellant’s checking account on
specific dates to the church’s business checking account from November 9, 2004 until May 12,
2010, with the amount totaling $18,065.00. From January 4, 2004 until December 14, 2010, she
transferred approximately $28,891.00 from the church business checking account to her personal
checking account.
In a statement dated April 17, 2006, C.M., treasurer of the church, advised that the church
had paid the mortgage on appellant’s home since 2001 and would “continue to do so through the
next three years and beyond until the mortgage is paid off completely.
On May 10, 2006 appellant completed a Uniform Residential Loan Application for the
church property. She listed monthly income of $3,751.47 in other income and indicated that she
had a pastoral allowance paid for by the church.4 On another Uniform Residential Loan
Application form of the same date, appellant listed her employer as the church and indicated that
she had worked at this job for seven years. She specified that she received $1,318.75 monthly
from the church for a housing allowance. Appellant signed a form agreeing to use the property as
her primary residence.
A June 10, 2006 settlement agreement for the property used as the church indicated that
appellant had received over $6,000.00 in cash for the refinance and that various creditors had also
been paid with the proceeds.
In a quality assurance questionnaire form signed and notarized December 7, 2009,
appellant responded “N/A” to the questions on the form regarding whether she had attended any
school since her disability began, whether she had any hobbies including church, whether she
performed any volunteer work, whether she was employed or self-employed, or involved with a
nonprofit organization.
The OIG’s office submitted a service bulletin for the church dated July 21, 2013 indicating
that appellant was the reverend. It also submitted a blank pledge card and a copy of the grand jury
indictment of her for violating 18 U.S.C. § 641 and 18 U.S.C. § 1920.
In a May 18, 2011 report of interview, J.B. advised that he and S.M., another special agent,
had interviewed L.B., a former member of the church. L.B. advised that she had met appellant
4

In 2006 appellant received around $1,126.68 from OWCP every 28 days on the periodic rolls.

4

when she was doing an internship at a local Episcopal Church after receiving a doctorate in
divinity. In 2000 L.B. attended an organizational meeting for the church at appellant’s home. The
group rented space in a local church. L.B. learned that appellant had purchased property to use for
the church and that an elderly woman had given her money for the down payment. She advised
that she donated around $5,000.00 a year each year that she had attended the church. L.B. indicated
that appellant saw clients for therapy at the church, charging $10.00 to $40.00 per session unless
the individual was unable to pay. When the property was refinanced, appellant called all the
members to the church to remove all church-like items so that it looked like residential property.
L.B. found documents showing that appellant had incorporated her personal debt into the
refinancing of the church property. She learned that the property had been refinanced three times.
In a report of interview dated May 18, 2011, J.B. advised that on May 11, 2011 he and
S.M. had interviewed P.L., who had been a member of the church three or four years earlier. P.L.
advised that the church had a maximum of 20 to 25 people, with usually only 8 to 10 in attendance.
She related that an elderly woman, E.H., had given appellant $25,000.00 to purchase the church
property. P.L. and her husband gave $300.00 to $400.00 each Sunday to pay the mortgage on the
church. They left the church around 2007 or 2008. P.L. confirmed that appellant worked fulltime as the reverend, conducting a service on Sunday, Bible study on Wednesday, providing
pastoral counseling, handling the church businesses, and being at the church daily from 11:00 a.m.
until 7:00 p.m. except for Mondays.
In a report of interview dated April 12, 2012, J.B. advised that he had interviewed M.P.,
G.P., and D.P. M.P. and G.P. related that they had attended the church 10 to 11 years earlier.
Appellant was the pastor of the church, which had a maximum of 20 to 30 members. M.P. did not
know if appellant received compensation but asserted that she “ran the place” and controlled the
finances. M.P. related that an individual had provided $40,000.00 to $50,000.00 to purchase the
church property and that she also had donated money for the purchase of the property. She advised
that the church felt like a cult.
In a report of interview dated April 12, 2012, T.T. related that the church had over 20
members at its peak but had lost members over time. He gave an offering each week of around
$10.00 to $20.00.
In a memorandum dated April 23, 2012, J.B. advised that he had telephoned the realtor
who had listed the church property for sale. The realtor advised that the woman who owned the
property ran it as a church, but was considering retiring and wanted to sell the property.
In an August 11, 2013 report of interview, J.B. advised that he and S.M. had entered the
property used as the church. The area inside was set up as a sanctuary, with crucifixes on the wall,
an altar, and chairs lined in rows. Appellant informed the agents that she volunteered at the church

5

on Sundays, had been an ordained minister for 20 years, and had a small congregation of 8 to 10
people. She gave them a business card for the church identifying herself as the minister.5
Surveillance activity logs dated August 2013 indicated that appellant drove to the church
each day from August 7 to 11, 2013.
In Form EN1032 dated January 31, 2017, appellant indicated that she received a regular
retirement check.
On March 9, 2017 OWCP requested that appellant verify whether she received retirement
benefits from the Office of Personnel Management (OPM).
By decision dated March 10, 2017, OWCP found that appellant had forfeited her
entitlement to compensation from November 12, 1999 through March 16, 2006 and from
December 31, 2006 through February 10, 2014 under 5 U.S.C. § 8106(b) as she knowingly failed
to report earnings from employment.
On March 10, 2017 OWCP advised appellant of its preliminary determination that she had
received an $183,933.95 overpayment of compensation for the periods November 12, 1999
through March 6, 2006 and December 31, 2006 through February 10, 2014 as she had forfeited
her entitlement to compensation. It provided its calculations of the amount of compensation paid
during the periods and attached a payment history, noting that it had manually calculated the first
and last periods of each forfeiture period. OWCP further notified appellant of its preliminary
finding that she was at fault in the creation of the overpayment. It provided her with an
overpayment action request form and an overpayment recovery questionnaire (Form OWCP-20).
Additionally, OWCP notified appellant that, within 30 days of the date of the letter, she could
request a telephone conference, a final decision based on the written evidence, or a prerecoupment
hearing.
In a letter dated March 22, 2017, appellant advised OWCP that she did not receive
retirement benefits from OPM but instead received “regular retirement” benefits from SSA.
On March 28, 2017 appellant requested a prerecoupment hearing before a representative
of OWCP’s Branch of Hearings and Review. In a completed Form OWCP-20, she provided
monthly income of $2,474.89 and listed monthly expenses of $2,320.00. Appellant alleged that
she was 1 of 11 people who had founded the church, that she was only listed as a signer on
accounts, and that she did not receive contributions or any salary.
By decision dated April 18, 2017, OWCP finalized its preliminary determination finding
that appellant had received an $183,933.95 overpayment of compensation as she had forfeited her
5

The OIG submitted surveillance activity log forms from 2009 recording activity at the church. It also submitted
a 2011 police report that appellant had filed against an OWCP referral physician. The case was closed. S.A. submitted
a memorandum from a discussion on May 23, 2011 with R.M., a city enforcement inspector, indicating that he had
inspected the property at the location of the church and found a large sign advertising service times. Appellant advised
that the property was not used as a church. S.A. submitted information about the signage violation and an
advertisement showing an auction on the property had been postponed. A June 20, 2011 letter indicated that appellant
attended Claremont School of Theology from May 1996 to May 1999 and earned a Master of Divinity degree.

6

entitlement to compensation for the periods November 12, 1999 through March 6, 2006 and
December 31, 2006 through February 10, 2014. It further finalized its finding that she was at fault
in the creation of the overpayment, and determined that it would withhold $366.40 from her
continuing compensation payments every 28 days to repay the overpayment.
Appellant appealed to the Board. By order dated May 4, 2018, the Board set aside the
April 18, 2017 decision.6 It found that appellant had timely requested a prerecoupment hearing
and remanded the case for OWCP to respond to her request.
On April 26, 2019 SSA provided OWCP with a Federal Employees Retirement System
(FERS)/SSA dual benefit calculation form.7 The form indicated that with FERS, appellant was
entitled to a monthly payment of $1,140.80, effective January 2016, $1,144.20, effective
December 2016, $1,167.00, effective December 2017, and $1,199.60, effective December 2018.
Without FERS, she was entitled to a monthly payment rate of $955.60 effective January 2016,
$958.40 effective December 2016, $977.50 effective December 2017, and $1,004.80 effective
December 2018.
A telephonic hearing was held on March 19, 2019. At the hearing, appellant indicated that
she was challenging both the forfeiture and the overpayment decisions. She argued that 12 people
had founded the church and that others served as pastors or reverends at the church. Appellant
advised that she went to the church building to avoid the stress of her partner’s Alzheimer’s
disease. She had obtained a degree from Claremont but was not capable of seeking employment.
Appellant advised that she claimed to be employed by the church in order to get loans from the
bank and that the amount that she had listed as income was the amount of her compensation
payments from OWCP. She asserted that she was a member rather than a volunteer at the church.
Appellant maintained that there were four reverends. OWCP’s hearing representative requested
that she submit an updated Form OWCP-20.
On March 19, 2019 OWCP sent appellant a Form OWCP-20 for completion.
On May 1, 2019 OWCP completed a FERS offset calculation form for the period
January 1, 2016 through April 27, 2019. It found that effective January 1, 2016, the monthly offset
was $185.20, or $170.95 every 28 days; effective December 1, 2016, the monthly offset was
$185.80, or $171.51 every 28 day days; effective December 1, 2017, the monthly offset was
$189.50 or $174.92 every 28 days; and effective December 1, 2018, the monthly offset was
$194.80, or $179.82 every 28 days. It divided the 28-day offset amount to find the daily amount,
which it multiplied by the number of days in each period from January 1, 2016 through April 27,
2019 to find the amount that it had overpaid appellant for each period. OWCP added the amounts
for each period and determined that it should have offset a total of $7,511.77 from her wage-loss
compensation.

6

Supra note 3.

7
SSA initially completed a form indicating that appellant’s rate with FERS was less than her rate without FERS.
On March 19, 2019 OWCP requested clarification, noting that the figures provided were inaccurate.

7

On May 9, 2019 OWCP advised appellant of its preliminary determination that she had
received an overpayment of $7,511.77 for the period January 1, 2016 through April 27, 2019
because it had failed to reduce her wage-loss compensation benefits by the portion of her SSA agerelated retirement benefits that were attributable to federal service.8 It further advised her of its
preliminary determination that she was without fault in the creation of the overpayment. OWCP
provided appellant with an overpayment action request form and an overpayment recovery
questionnaire (Form OWCP-20). Additionally, it notified her that, within 30 days of the date of
the letter, she could request a telephone conference, a final decision based on the written evidence,
or a prerecoupment hearing.
By decision dated May 17, 2019, OWCP’s hearing representative affirmed the March 10,
2017 forfeiture decision. In a separate decision of even date, he found that appellant had received
an overpayment of wage-loss compensation in the amount of $183,933.85 as she had forfeited her
entitlement to compensation from November 12, 1999 through March 16, 2006 and December 31,
2006 through February 10, 2014. The hearing representative determined that she was at fault in
the creation of the overpayment and thus not eligible for waiver of recovery of the overpayment.9
He noted that appellant had not submitted an updated Form OWCP-20 with supporting
documentation as requested. The hearing representative determined that OWCP should deduct
$382.15 from her continuing compensation payments every 28 days to repay the overpayment.
By decision dated June 13, 2019, OWCP finalized its May 9, 2019 preliminary
determination finding that appellant had received an overpayment of compensation in the amount
of $7,511.77 for the period January 1, 2016 through April 27, 2019 because she had concurrently
received FECA wage-loss compensation and SSA age-related retirement benefits without the
appropriate offset. It further determined that she was without fault in the creation of the
overpayment, but denied waiver of recovery. OWCP found that appellant had not submitted
information supporting waiver of recovery. It determined that it would recover the overpayment
by deducting $236.26 every 28 days from appellant’s continuing compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8106(b) of FECA10 provides that an employee who “fails to make an affidavit or
report when required or knowingly omits or understates any part of his earnings, forfeits his right
to compensation with respect to any period for which the affidavit or report was required.11
An employee, however, can only be subjected to the forfeiture provision of 5 U.S.C. § 8106
if he or she knowingly failed to report employment or earnings. It is not enough to merely establish
A notification of personnel action (SF-50) dated January 14, 1990 indicated that appellant’s retirement plan was
FERS and FICA (Federal Insurance Contributions Act).
8

OWCP’s hearing representative noted that appellant had advised that her spouse had died. He indicated that she
might wish to submit a copy of the marriage certificate and death certificate and claim compensation and see if she
was entitled to compensation at the augmented rate.
9

10

Supra note 1.

11

5 U.S.C. § 8106(b).

8

that there were unreported earnings. The Board has recognized that forfeiture is a penalty, and, as
a penalty provision, it must be narrowly construed.12 The term knowingly is defined within
OWCP’s regulations as with knowledge, consciously, willfully, or intentionally.13
OWCP regulations define earnings from employment or self-employment as: (1) gross
earnings or wages before any deductions and includes the value of subsistence, quarters,
reimbursed expenses and any offer goods or services received in kind as remuneration; or (2) a
reasonable estimate of the cost to have someone else perform the duties of an individual who
accepts no remuneration.14 Neither lack of profits nor the characterization of the duties as a hobby
removes an unremunerated individual’s responsibility to report the estimated cost to have someone
else perform his or her duties.15
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant forfeited her right to
compensation for the periods November 12, 1999 through March 10, 2003, March 23, 2003
through March 16, 2006, and December 31, 2006 through February 10, 2014, pursuant 5 U.S.C.
§ 8106(b)(2) of FECA, because she knowingly failed to report her employment activities and
earnings. The Board finds that OWCP improperly determined that she forfeited her entitlement to
compensation for the period March 11 through 22, 2003.
OWCP found that appellant forfeited her compensation from November 12, 1999 through
March 16, 2003 and December 31, 2006 through February 10, 2014 as she failed to report
employment activities on EN1032 forms covering these periods.
The EN1032 forms sent by OWCP to appellant advised her of her responsibility to
complete the forms and provide all relevant information concerning her employment status and
earnings during the 15-month period covered by the forms. The forms she signed noted that she
must report all employment, self-employment, or involvement in business enterprises. This
included such activities as overseeing a business of any kind, including involvement in any
enterprise she owned. The forms further requested that appellant indicate whether she had
performed volunteer work for any form of monetary or in-kind compensation.
In EN1032 forms signed February 12, 2001, January 18, 2002, March 10, 2003, June 23,
2004, March 3, 2005, March 16, 2006, March 31, 2008, March 25, 2009, February 28, 2010,
February 6, 2011, February 10, 2012, January 26, 2013, and February 10, 2014, appellant
responded that she had not engaged in any employment, self-employment, engaged in any business
enterprise, or performed volunteer work for any form of compensation during the 15-month period
covered by each form.

12

P.H., Docket No. 17-1362 (issued March 13, 2018).

13

20 C.F.R. § 10.5(n); R.A., Docket No. 18-0406 (issued January 28, 2019).

14

Id. at § 10.5(g).

15

Id.

9

In an investigative report dated August 23, 2016, J.B. advised that appellant had served as
a pastor/reverend for the Church of the Beloved since at least November 2001. He submitted
reports of interviews with parishioners verifying that appellant was in charge of the church, loan
applications in which she listed the church as her employer, and a list of monetary transfers she
made between her personal bank account and the church bank account. J.B. indicated that
appellant had been indicated by a grand jury for violating 18 U.S.C. § 641, theft of money or
property of the United States, and 18 U.S.C. § 1920, making a false statement to obtain benefits
from OWCP, but indicated that the indictment had subsequently been dismissed.
The Board finds that appellant forfeited entitlement to wage-loss compensation from
November 12, 1999 through March 10, 2003 and March 23, 2003 through March 16, 2006. In a
statement dated April 17, 2006, C.M., the church treasurer, indicated that the church had paid the
mortgage on appellant’s home since 2001 and would continue to do so until the mortgage was
paid. On a May 10, 2006 Uniform Residential Loan Application, appellant advised that she
received $1,318.75 monthly from the church, that the church was her employer, and that she had
worked there for the past seven years. The evidence, consequently establishes that appellant had
performed work at the church since at least 2000 and earned $1,318.75 monthly. However, she
signed EN1032 forms on February 12, 2001 covering the period November 1, 1999 to
February 12, 2001, on January 18, 2002 covering the period October 18, 2000 to January 18, 2002,
on March 10, 2003 covering the period December 10, 2001 to March 10, 2003, on June 23, 2004
covering the period March 23, 2003 through June 23, 2004, on March 3, 2005 covering the period
December 3, 2003 to March 3, 2005, and on March 16, 2006 covering the period December 16,
2004 to March 16, 2006. On the forms appellant indicated that she did not perform any
employment and was not self-employed for the periods covered by the forms. If a Form EN1032
is improperly completed resulting in a finding of forfeiture, the period of forfeiture is the entire
15-month period covered by the form in question.16 Appellant, consequently, forfeited her
entitlement to compensation from November 12, 1999 through March 10, 2003 and March 23,
2003 through March 16, 2006.
The Board finds, however, that the evidence is insufficient to support that appellant
forfeited her entitlement to wage-loss compensation from March 11 through 22, 2003. The record
contains no Form EN1032 or other document covering this period. Without such a form or
document, the period of forfeiture must be limited to the period in which it is established that the
claimant actually worked and did not report/underreported earnings, or failed to disclose any selfemployment or involvement in a business enterprise.17 In such a circumstance, OWCP must match
the actual unreported earnings with a corresponding period of compensation received.18 It had not
undertaken such analysis for this period. Accordingly, OWCP’s finding of forfeiture for the period
March 11 through 22, 2003 will be reversed.19

16
J.C., Docket No. 16-1058 (issued July 10, 2017); R.B., Docket No. 15-1946 (issued September 2, 2016); Martin
James Sullivan, 50 ECAB 158 (1998).
17

See T.P., Docket No. 17-0717 (issued April 11, 2018); C.R., Docket No. 08-2425 (issued August 3, 2009).

18

C.F., Docket No. 16-0916 (issued June 28, 2017).

19

Id.; see also J.S., Docket No. 09-1640 (issued April 1, 2010).

10

The Board further finds that appellant forfeited her entitlement to compensation from
December 31, 2006 to February 10, 2012. On the forms appellant indicated that she was not
employed or self-employed. However, from January 14, 2004 to December 14, 2010, she
transferred approximately $28,781.00 from the church’s business account to her personal checking
account. The transfers were made during each period covered by EN1032 forms dated March 31,
2008 to February 10, 2012 covering the period December 31, 2006 to February 10, 2012. The
bank transfers show that appellant engaged in business activities during these periods.
Additionally, a 2007 annual report to the State of Arizona identified appellant as the reverend or
director of the church. In applications to open consumer accounts in July and September 2009,
she listed her employer as the church. As appellant did not report her employment activity when
she completed the EN1032 forms covering the period December 31, 2006 to February 10, 2012,
the Board finds that she forfeited her right to compensation for this period.
The Board further finds that appellant forfeited her right to wage-loss compensation from
February 11, 2012 through February 10, 2014. For the Form EN1032 signed on January 26, 2013,
covering the period October 26, 2011 through January 26, 2013, and the Form EN1032 signed
February 10, 2014, covering the period November 10, 2012 through February 10, 2014, the Board
notes that the OIG submitted an April 23, 2012 real estate listing advertising the church property
for sale. It also submitted a memorandum indicating that an agent had telephoned the listing agent
for the property who informed him that his client ran the property as a church but was considering
retiring. A website for 2012 advertised the church and appellant’s e-mail address. On August 11,
2013 J.B. and S.M. interviewed appellant at the church property, noting that there was a sanctuary
on the inside of the property with crucifixes on the wall, an altar, and a row of chairs. Appellant
advised that she was an ordained minister who volunteered at the church. The totality of the
evidence, however, including interviews with former parishioners, establish that appellant, in her
role as minister of the church, received donations for the church, was in charge of the church, and
conducted the business of church. As noted, when a Form EN1032 is improperly completed
resulting in a finding of forfeiture, the period of the forfeiture is the entire 15-month period covered
by the form in question. The Board finds that appellant forfeited her entitlement to compensation
for the 15-month periods preceding her signing of EN1032 forms on January 26, 2013 and
February 10, 2014, covering the period October 26, 2011 through February 10, 2014.
Appellant can be subject to the forfeiture provision of section 8106(c) only if she
knowingly failed to report earnings or employment. OWCP has the burden of proof to establish
that a claimant did, either with knowledge, consciously, willfully, or intentionally, fail to report
earnings from employment.20 The Board finds that appellant indicating that the church was her
employer on loan applications, the treasurer’s statement that the church paid the mortgage on her
house, and transferring money between the church account and her personal account is persuasive
evidence that she knew that she had income from employment which she failed to disclose on the
EN1032 forms. Appellant’s signing of a strongly-worded certification clause on the EN1032
forms demonstrates that she was aware of the materiality of her failure to report her employment
activity.21 Therefore, she knowingly failed to comply with the reporting requirements for the
periods November 12, 1999 through March 10, 2003, March 23, 2003 through March 16, 2006,
20

See S.M., Docket No. 16-1612 (issued April 11, 2018).

21

C.W., Docket No .18-1557 (issued June 25, 2019); M.O., Docket No. 18-0686 (issued January 25, 2019).

11

and December 31, 2006 through February 10, 2014. OWCP, consequently, properly found that
she forfeited her entitlement to compensation for these periods.
LEGAL PRECEDENT -- ISSUE 2
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty.22 Section 8129(a) of FECA provides, in 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.”23
Section 10.529(b) of OWCP’s implementing regulations provides as follows:
“(b) Where the right to compensation is forfeited, OWCP shall recover any
compensation already paid for the period of forfeiture pursuant to 5 U.S.C. § 8129
and other relevant statutes.”24
ANALYSIS -- ISSUE 2
The Board finds that appellant received an overpayment of compensation but that the case
is not in posture regarding the amount of overpayment resulting from the forfeiture decision.
OWCP regulations provide that OWCP must declare an overpayment of compensation for
any compensation already paid the period of a given forfeiture of compensation.25 If a claimant
has any employment, including self-employment or involvement in a business enterprise, during
a period covered by a Form EN1032 which he or she fails to report, the claimant is not entitled to
compensation for any portion of the period covered by the report, even though he or she may not
have had earnings during a portion of that period.26 Appellant engaged in employment during
periods covered by EN1032 forms and thus received an overpayment of compensation.
As discussed above, the Board found that appellant forfeited entitlement to compensation
for the periods November 12, 1999 through March 10, 2003, March 23, 2003 through March 16,
2006, and December 31, 2006 through February 10, 2014. The Board further found that OWCP
had not established that she forfeited her entitlement to compensation from March 11 through

22

5 U.S.C. § 8102(b).

23

Id. at § 8129(a).

24

20 C.F.R. § 10.529.

25

Id.

26

Id.

12

22, 2003. Consequently, the case must be remanded to OWCP to recalculate the overpayment
based on the periods of her forfeiture of compensation as found by the Board.27
LEGAL PRECEDENT -- ISSUE 3
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”28
Section 10.433(a) of OWCP’s regulations provides that OWCP:
“[M]ay consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of
compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she receives from OWCP are proper. The recipient must show
good faith and exercise a high degree of care in reporting events which may affect
entitlement to or the amount of benefits. A recipient who has done any of the
following will be found to be at fault in creating an overpayment:
‘(1) Made an incorrect statement as to a material fact which he or she knew
or should have known to be incorrect; or
‘(2) Failed to provide information which he or she knew or should have
known to be material; or
‘(3) Accepted a payment which he or she knew or should have known to be
incorrect. (This provision applies only to the overpaid individual).’”29
To determine if an individual was at fault with respect to the creation of an overpayment,
OWCP examines the circumstances surrounding the overpayment. The degree of care expected
may vary with the complexity of those circumstances and the individual’s capacity to realize that
he or she is being overpaid.30

27

T.P., Docket No. 17-0717 (issued April 11, 2018); J.A., Docket No. 14-1863 (issued July 7, 2015).

28

5 U.S.C. § 8129; see A.S., Docket No. 17-0606 (issued December 21, 2017); Linda E. Padilla, 45 ECAB
768 (1994).
29

20 C.F.R. § 10.433(a); see K.F., Docket No. 19-1016 (issued February 14, 2020); Sinclair L. Taylor, 52 ECAB
227 (2001).
30

Id. at § 10.433(b); J.C., Docket No. 19-0911 (issued March 25, 2021); Duane C. Rawlings, 55 ECAB 366 (2004).

13

ANALYSIS -- ISSUE 3
The Board finds that OWCP properly determined that appellant was at fault in the creation
of the overpayment which occurred due to her forfeiture of compensation, thereby precluding
waiver of recovery of the overpayment.
As discussed above, the record supports that appellant had employment activity for the
periods November 12, 1999 through March 10, 2003, March 23, 2003 through March 16, 2006,
and December 31, 2006 through February 10, 2014. Appellant signed EN1032 forms on
February 12, 2001, January 18, 2002, March 10, 2003, June 23, 2004, March 3, 2005, March 16,
2006, March 31, 2008, March 25, 2009, February 28, 2010, February 6, 2011, February 10, 2012,
January 26, 2013, and February 10, 2014 advising that she had no earnings and participated in no
employment or self-employment activities.
The explicit language of the EN1032 forms demonstrate that appellant knew or should have
known that the nature of her work activity at the church would require her to report such
employment activities and earnings on the forms.31 Her failure to accurately report her earnings
and employment activities on the EN1032 forms constitutes a failure to provide information which
she knew or should have known to be material in the creation of the overpayment.32 Consequently,
appellant is not eligible for a waiver of recovery of the overpayment.33
LEGAL PRECEDENT -- ISSUE 5
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty.34 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.35
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.36 FECA Bulletin No. 97-09 states that FECA
benefits have to be adjusted for the FERS portion of SSA benefits because the portion of the SSA

31

M.O., supra note 21; J.A., Docket No. 14-1863 (issued July 7, 2015).

32

B.K., Docket No. 17-0406 (issued December 12, 2017).

33

In view of the Board’s disposition of Issue 2, Issue 4 is moot.

34

5 U.S.C. § 8102(a).

35

Id. at § 8116.

36

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

14

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.37
ANALYSIS -- ISSUE 5
The Board finds that appellant received an overpayment of wage-loss compensation in the
amount of $7,511.77 for the period January 1, 2016 through April 27, 2019, for which she was
without fault, because she concurrently received FECA wage-loss compensation benefits and SSA
age-related retirement benefits without appropriate offset.
OWCP paid appellant wage-loss compensation for total disability following her injury.
She subsequently began receiving SSA age-related retirement benefits. As noted, a claimant
cannot receive FECA compensation for wage-loss and SSA age-related retirement benefits
attributable to federal service for the same period.38 Accordingly, the Board finds that fact of
overpayment has been established.39
To determine the amount of the overpayment, the portion of SSA age-related retirement
benefits 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 the SSA rates with FERS and without FERS for
specific periods from January 1, 2016 through April 27, 2019. OWCP set forth its calculations of
the amount that should have been offset during the relevant period based on information provided
by SSA for the period January 1, 2016 through April 27, 2019.
The Board has reviewed OWCP’s calculation of dual benefits received by appellant for the
period January 1, 2016 through April 27, 2019 and finds that an overpayment of compensation in
the amount of $7,511.77 was created.40
LEGAL PRECEDENT -- ISSUE 6
Section 8129 of FECA provides that an overpayment must be recovered unless incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
would defeat the purpose of FECA or would be against equity and good conscience. 41 Thus, a
finding that appellant was without fault does not automatically result in waiver of the overpayment.

37

FECA Bulletin No. 97-09 (issued February 3, 1997).
January 4, 2019).

See also N.B., Docket No. 18-0795 (issued

38

Supra note 36; see A.C., Docket No. 18-1550 (issued February 21, 2019).

39

See S.H., Docket No. 20-1157 (issued December 23, 2020); K.H., Docket No. 18-0171 (issued August 2, 2018).

40

See N.B., Docket No. 20-0727 (issued January 26, 2021); L.L., Docket No. 18-1103 (issued March 5, 2019).

41

5 U.S.C. § 8129(a)-(b).

15

OWCP must exercise its discretion to determine whether recovery of the overpayment would
defeat the purpose of FECA or would be against equity and good conscience.42
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.43 An individual’s liquid assets
include, but are not limited to, cash on hand, value of stocks, bonds, savings accounts, mutual
funds, and certificates of deposits. Nonliquid assets include, but are not limited to, the fair market
value of an owner’s equity in property such as a camper, boat, second home, furnishings/supplies,
vehicle(s) above the two allowed per immediate family, retirement account balances (such as
Thrift Savings Plan or 401(k)), jewelry, and artwork.44
Section 10.437 provides that 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
her position for the worse.45
ANALYSIS -- ISSUE 6
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant not at fault in the creation of the overpayment, waiver must be
considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience.46 Appellant,
however, has the responsibility to provide the appropriate financial information and documentation
to OWCP.47
In its preliminary overpayment determination, dated May 9, 2019, OWCP requested that
appellant provide a completed Form OWCP-20 and supporting financial information, including
copies of income tax returns, bank account statements, bills and cancelled checks, pay slips, and
42

C.B., Docket No. 20-0031 (issued July 27, 2020); G.L., Docket No. 19-0297 (issued October 23, 2019).

43
20 C.F.R. § 10.436. OWCP procedures provide that a claimant is deemed to need substantially all of his or her
current net income to meet current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00. Its procedures further provide that assets must not exceed a resource base of $6,200.00
for an individual or $10,300.00 for an individual with a spouse or dependent plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4(a)(2) and (3) (September 2018).
44

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

45

20 C.F.R. § 10.437(b)(1).

46

Id. at § 10.436.

47

Id. at § 10.438. See E.S., Docket No. 20-0919 (issued February 8, 2021).

16

any other records to support income and expenses. It advised her that it would deny waiver of
recovery of the overpayment if she failed to furnish the requested financial information within 30
days. Appellant did not timely submit a completed Form OWCP-20 or the financial information
necessary for OWCP to determine if recovery of the overpayment would defeat the purpose of
FECA or be against equity and good conscience.48
Accordingly, as appellant did not submit the information required under 20 C.F.R. § 10.438
of OWCP’s regulations to determine her eligibility for waiver, the Board finds that OWCP
properly denied waiver of recovery of the overpayment.49
LEGAL PRECEDENT -- ISSUE 7
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA.50
Section 10.411 of OWCP’s regulations provides in pertinent part:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
soon as the error is discovered or his or her attention is called to same. If no refund
is made, OWCP shall decrease later payments of compensation, taking into account
the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize
any hardship.”51
ANALYSIS -- ISSUE 7
The Board finds that OWCP properly required repayment of the $7,511.77 overpayment
by deducting $236.26 from appellant’s continuing compensation payments every 28 days.
As discussed, appellant did not complete the overpayment recovery questionnaire or
provide the necessary financial information to support her income and expenses. The overpaid
individual is responsible for providing information about income, expenses, and assets as specified
by OWCP.52 When an individual fails to provide requested financial information, OWCP should
follow minimum collection guidelines designed to collect the debt promptly and in full. 53 As
appellant did not submit the financial documentation to OWCP as requested, the Board finds that
48

J.C., Docket No. 20-1062 (issued January 4, 2021); E.M., Docket No. 19-0857 (issued December 31, 2019).

49

J.C., id.

50

20 C.F.R. § 10.441; see M.P., Docket No. 18-0902 (issued October 16, 2018).

51

Id. at § 10.441(a).

52

20 C.F.R § 10.438.

53
E.M., supra note 48; Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Debt Liquidation, Chapter
6.500.2 (September 2018).

17

OWCP properly directed recovery of the $7,511.77 overpayment of compensation at the rate of
$236.26 every 28 days from her continuing compensation payments.54
CONCLUSION
The Board finds that OWCP properly determined that appellant forfeited her right to
compensation for the periods November 12, 1999 through March 10, 2003, March 23, 2003
through March 16, 2006, and December 31, 2006 through February 10, 2014, pursuant 5 U.S.C.
§ 8106(b)(2) of FECA, because she knowingly failed to report her employment activities and
earnings. The Board also finds that OWCP improperly determined that she forfeited her
entitlement to compensation for the period March 11 through 22, 2003. The Board further finds
that the case is not in posture for decision regarding the amount of overpayment created by the
forfeiture of compensation. The Board finds that OWCP properly determined appellant was at
fault in the creation of the overpayment, thereby precluding waiver of recovery of the overpayment
and that it is premature to address recovery of the overpayment pending the determination of the
amount of the overpayment created by the forfeiture of compensation. The Board further finds
that OWCP properly determined that appellant received an overpayment of wage-loss
compensation in the amount of $7,511.77 for the period January 1, 2016 through April 27, 2019,
for which she was without fault, because she concurrently received FECA wage-loss compensation
benefits and SSA age-related retirement benefits without appropriate offset, that OWCP properly
denied waiver of recovery of the overpayment, and that OWCP properly required recovery of the
overpayment by deducting $263.26 from her continuing compensation payments every 28 days.
ORDER
IT IS HEREBY ORDERED THAT the May 17, 2019 forfeiture decision of the Office
of Workers’ Compensation Programs is affirmed in part and reversed in part. The May 17, 2019
decision concerning the overpayment resulting from the forfeiture is affirmed in part and set aside

54

See J.A., Docket No. 19-1946 (issued July 13, 2020); E.K., Docket No. 18-0587 (issued October 1, 2018).

18

in part. The June 13, 2019 decision regarding the SSA/FERS overpayment is affirmed. The case
is remanded for further proceedings consistent with this decision of the Board.
Issued: August 10, 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

19


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

)
)
)
)
)
)
)
)

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

Docket No. 14-332
Issued: May 14, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 27, 2013 appellant, through her attorney, filed a timely appeal from the
October 3, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which denied her claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of this case.2
ISSUE
The issue is whether appellant sustained an occupational disease in the performance of
duty.

1
2

5 U.S.C. § 8101 et seq.

Appellant did not appeal OWCP’s October 30, 2013 nonmerit decision denying a hearing before an OWCP
hearing representative; thus, the Board will not review it. See 20 C.F.R. § 501.3(a).

FACTUAL HISTORY
On the prior appeal of this case,3 the Board found an unresolved conflict in medical
opinion between Dr. William Pearce, appellant’s Board-certified surgeon, and Dr. R.M. Ubilluz,
a Board-certified neurologist and second-opinion physician. Dr. Pearce diagnosed likely
thoracic outlet syndrome in the right shoulder and opined that this condition was related to lifting
heavy boxes and opening and closing doors at work. Dr. Ubilluz found no evidence of
peripheral neuropathy, neurological thoracic outlet syndrome or disc herniation.
The first impartial medical specialist, Dr. Ricardo Kohn, a Board-certified neurologist,
found no objective evidence of thoracic outlet syndrome based on physical examination findings
and previous testing. He was unable to render a definitive opinion on the issue without further
testing. When the Board found that Dr. Kohn’s report was insufficient to resolve whether
appellant developed a medical condition as a result of the accepted employment activities,
OWCP referred appellant to Dr. Volker Bertrand, a Board-certified neurologist, to resolve the
conflict. The Board found, however, that Dr. Bertrand’s reports were also insufficient to resolve
the conflict. The facts of the case as set forth in prior Board decisions are hereby incorporated
by reference.
OWCP referred appellant, together with the medical record and a statement of accepted
facts, to Dr. Syed Sohail Ahmed, a Board-certified neurologist, for an impartial medical
evaluation. On April 8, 2013 Dr. Ahmed reviewed appellant’s medical records, history and
complaints. He described his findings on physical examination. It was Dr. Ahmed’s opinion
that appellant’s symptoms were likely due to muscle strain. There was no evidence clinically or
by diagnostic testing of radiculopathy, plexopathy or polyneuropathy.
Answering questions posed by OWCP, Dr. Ahmed advised that appellant did not have
thoracic outlet syndrome. There were no objective findings such as neuropathy or objective
vascular changes and there were also negative tests of the brachial plexus. Dr. Ahmed could not
say that appellant’s symptoms were brought on by her employment, but it was possible that her
symptoms were aggravated by job functions requiring movements like flexing and extending the
arm repeatedly and raising the arm above the shoulder and lifting heavy packages repeatedly. It
did not appear that appellant’s symptoms were progressing. Similarly, although appellant’s low
back pain may not necessarily have been caused by employment, it could have been aggravated
because of prolonged standing, bending and twisting.
Dr. Ahmed clarified that appellant had no current condition involving her upper
extremities, lower extremities or spine. Appellant did not complain of specific shoulder pain,
and an imaging study was normal. She had subjective complaints possibly consistent with ulnar
nerve irritation on the right, but diagnostic studies did not substantiate an ulnar nerve problem.
Another study showed mild carpal tunnel syndrome, but appellant had no current complaints
consistent with that. Appellant had normal motor and sensory function of the lower extremities.
She carried the nonwork-related diagnoses of thyroid disorder, which was associated with
3

Docket No. 12-1380 (issued December 12, 2012); see Docket No. 11-807 (issued October 11, 2011). On
February 23, 2009 appellant, then a 47-year-old service sales associate, claimed that she sustained neck, shoulder
and back injuries due to excessive standing, bending and repetitive right arm activities at work.

2

peripheral nerve problems such as median neuropathy and ulnar neuropathy. Appellant also
carried the diagnosis of fibromyalgia, which was often associated with widespread
musculoskeletal complaints.
Dr. Ahmed stated that appellant may have sustained a temporary aggravation of her
underlying cervical and lumbar degenerative disease as a result of her work activities. Appellant
may also have sustained a temporary strain of her right shoulder as a result of her work activities.
Dr. Ahmed explained that the date of resolution would be the date she stopped work, as there
was no longer any provocative activity. “Extensive investigation has failed to reveal any
significant abnormality that might be attributed to [appellant’s] work at the [employing
establishment].”
OWCP requested a supplemental report from Dr. Ahmed. It asked whether any muscle
strain observed while examining appellant medically connected to the work she performed until
2010. OWCP also asked whether the restrictions Dr. Ahmed imposed were warranted by
conditions related or unrelated to her federal employment.
On June 14, 2013 Dr. Ahmed clarified that a muscle strain cannot be objectively
documented on examination or with an imaging study. The diagnosis was based on history,
complaints and subjective examination findings. Appellant’s muscle strain-type symptoms were
in no way related to her work at the employing establishment. Any work-related component of
her symptoms had resolved by the time she stopped work in 2010. Appellant also carried the
diagnosis of fibromyalgia, which is often associated with widespread musculoskeletal
complaints. “I believe her fibromyalgia and deconditioning are the most likely explanation for
her complaints. These are not in any way related to her employment at the [employing
establishment].” As any work-related component of appellant’s symptoms resolved at the time
she stopped work in 2010, her restrictions would be for conditions unrelated to her federal
employment.
In a decision dated October 3, 2013, OWCP denied appellant’s occupational disease
claim. It found that the opinion of Dr. Ahmed, the impartial medical specialist, represented the
weight of the medical opinion evidence and established that the claimed medical conditions of
the spine and right shoulder/arm were not medically connected with appellant’s postal
employment. OWCP found that the evidence failed to establish that appellant’s duties as a sales
and service associate resulted in or worsened any neck, shoulder or spine problems.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.4 An employee seeking benefits under FECA
has the burden of proof to establish the essential elements of his or her claim. When an
employee claims that he or she sustained an injury in the performance of duty, he or she must
submit sufficient evidence to establish that he or she experienced a specific event, incident or

4

5 U.S.C. § 8102(a).

3

exposure occurring at the time, place and in the manner alleged. He or she must also establish
that such event, incident or exposure caused an injury.5
Causal relationship is a medical issue6 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the claimant,7 must be
one of reasonable medical certainty8 and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the established incident or factor
of employment.9
If there is disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall
make an examination.10 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.11
When OWCP secures an opinion from an impartial medical specialist for the purpose of
resolving a conflict in the medical evidence and the opinion from the specialist requires
clarification or elaboration, it has the responsibility to secure a supplemental report from the
specialist for the purpose of correcting a defect in the original report. When the impartial medical
specialist’s statement of clarification or elaboration is not forthcoming or if the specialist is unable
to clarify or elaborate on the original report or if the specialist’s supplemental report is also vague,
speculative or lacks rationale, OWCP must submit the case record together with a detailed
statement of accepted facts to a second impartial specialist for a rationalized medical opinion on
the issue in question.12 Unless this procedure is carried out by OWCP, the intent of section
8123(a) will be circumvented and the impartial specialist’s medical report insufficient to resolve
the conflict of medical evidence.13

5

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

6

Mary J. Briggs, 37 ECAB 578 (1986).

7

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

8

See Morris Scanlon, 11 ECAB 384, 385 (1960).

9

See William E. Enright, 31 ECAB 426, 430 (1980).

10

5 U.S.C. § 8123(a).

11

Carl Epstein, 38 ECAB 539 (1987); James P. Roberts, 31 ECAB 1010 (1980).

12

See Nathan L. Harrell, 41 ECAB 402 (1990).

13

Harold Travis, 30 ECAB 1071 (1979).

4

ANALYSIS
The issue to be resolved is whether appellant developed a medical condition as a result of
the accepted employment activities. Dr. Ahmed, the neurologist and impartial medical specialist,
made clear that appellant currently has no medical condition related to her federal employment.
He advised, however, that she may have sustained a temporary aggravation of her underlying
cervical and lumbar degenerative disease as a result of her work activities and may have
sustained a temporary strain of her right shoulder, resolving in the absence of provocative
activity after she stopped work in 2010. Dr. Ahmed identified particular job functions such as
flexing and extending the arm repeatedly, raising the arm above the shoulder, lifting heavy
packages repeatedly and prolonged standing, bending and twisting.
The Board finds that Dr. Ahmed’s opinion is equivocal. Dr. Ahmed did not express his
opinion to a reasonable medical certainty. Instead, he repeatedly couched his opinion in terms of
“may have.”
The Board finds that further medical development is warranted. OWCP should ask
Dr. Ahmed whether he can clarify whether the job functions he identified caused a temporary
symptomatic exacerbation or aggravation of appellant’s underlying cervical or lumbar
degenerative disease and a temporary strain of her right shoulder. Following such further
development as may become necessary, it shall issue a de novo decision on appellant’s claim.
CONCLUSION
The Board finds that this case is not in posture for decision. A supplemental report from
the impartial medical specialist is warranted.

5

ORDER
IT IS HEREBY ORDERED THAT the October 3, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action.
Issued: May 14, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, CANARSIE STATION, )
Brooklyn, NE, Employer
)
__________________________________________ )
R.F., Appellant

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

Docket No. 18-0284
Issued: July 9, 2018

Case Submitted on the Record

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

JURISDICTION
On November 27, 2017 appellant, through counsel, filed a timely appeal from a
September 22, 2017 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). As more than 180 days elapsed from the last merit decision, dated September 7, 2017,
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 has jurisdiction to review this nonmerit decision.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that the case record also contains a September 7, 2017 merit decision of OWCP. In his
November 27, 2017 application for review (Form AB-1), counsel indicated that the appeal was from the September 22,
2017 decision. He did not appeal from or otherwise mention the September 7, 2017 merit decision.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On March 27, 1997 appellant, then a 34-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that, on that date, she was delivering mail when a dog pushed open a
door which struck her and caused her to fall on her right ankle. OWCP accepted the claim for
right ankle sprain/strain.
The case remained dormant until 2016. In a note dated September 20, 2016, Dr. Noor
Khan, a Board-certified internist, found that appellant had reached maximum medical
improvement (MMI). On November 3, 2016 appellant filed a schedule award claim (Form CA-7).
In a development letter dated November 10, 2016, OWCP informed appellant that she
should submit a report from her treating physician which provided a permanent impairment rating
in support of her schedule award claim. It afforded her 30 days to submit the necessary evidence.
OWCP did not receive any additional evidence.
By decision dated December 30, 2016, OWCP denied appellant’s schedule award claim,
finding that she had not provided medical evidence of permanent impairment due to her accepted
right ankle sprain. In a letter dated January 5, 2017, counsel requested an oral hearing before an
OWCP hearing representative.
In a report dated February 8, 2017, Dr. Kumar S. Reddy, a Board-certified orthopedic
surgeon, provided a description of appellant’s injury on March 27, 1997 which occurred while she
was delivering mail, when a dog inside a house charged the storm door which hit her and caused
her to fall backwards down two steps landing on her right ankle and on the pavement. Appellant
reported continuing right ankle pain and swelling. She noted that she was receiving disability
retirement benefits. Dr. Reddy reviewed medical records including an August 18, 1997 orthopedic
examination, an April 4, 2001 magnetic resonance imaging (MRI) scan of the right ankle and
December 18, 2012 right ankle x-rays. He provided appellant’s right ankle range of motion
figures. Dr. Reddy found that she had 30 degrees of plantarflexion, 10 degrees of dorsiflexion,
and 15 degrees of both inversion and eversion. He diagnosed right ankle sprain resolved with
residuals. Dr. Reddy concluded that appellant had reached MMI. He applied the sixth edition of
the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides)4 and found that she had seven percent permanent impairment of the right ankle based on
her loss of range of motion.5
On July 12, 2017 appellant testified during the oral hearing and noted that she had
continuing right ankle pain and swelling. She testified that she had not returned to full-duty work
4

A.M.A., Guides (6th ed. 2009).

5

Id. at 549, Table 16-20 and Table 16-22.

2

after the March 27, 1997 employment injury and that she retired on June 3, 2010 due to another
medical condition.
Dr. Reddy provided a supplemental report on July 26, 2017 noting that appellant’s right
ankle sprain had reached MMI on February 8, 2017. He found that, based on her history, she had
no preexisting right ankle conditions and that she had seven percent permanent impairment of her
right ankle due to loss of range of motion.
By decision dated September 7, 2017, OWCP’s hearing representative found that
Dr. Reddy’s reports were insufficient to establish that appellant sustained any permanent
impairment causally related to her March 27, 1997 employment injury. She found that his reports
included a diagnosis of a resolved ankle sprain with residuals which was contradictory as it was
unclear how he could conclude that appellant had residuals of a condition that was found to be
resolved. The hearing representative further noted that Dr. Reddy made largely unremarkable
physical findings, noting no swelling, tenderness, redness, or crepitation. She concluded that he
did not explain why appellant’s range of motion deficits were related to her accepted ankle sprain
rather than to her concurrent conditions of lupus, arthritis, osteoarthritis of both legs, and diabetes.
On September 18, 2017 counsel requested reconsideration of the September 7, 2017
decision. He resubmitted the July 26, 2017 report from Dr. Reddy.
By decision dated September 22, 2017, OWCP denied appellant’s request for
reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a). It noted that she
resubmitted the July 26, 2017 report from Dr. Reddy, which had been previously reviewed by
OWCP’s hearing representative in the September 7, 2017 merit decision.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.6 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.7 One such limitation is that to be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant’s application for review must
be received within one year of the date of that decision.8 To require OWCP to reopen a case for
merit review under section 8128(a) of FECA,9 OWCP’s regulations provide that the evidence or
argument submitted by a claimant must: (1) show that OWCP erroneously applied or interpreted
a specific point of law; (2) advance a relevant legal argument not previously considered by OWCP;
or (3) constitute relevant and pertinent new evidence not previously considered by OWCP.10
6

This section provides in pertinent part: the Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
7

20 C.F.R. § 10.607.

8

Id. at § 10.607(a).

9

5 U.S.C. § 8128(a). Under section 8128 of FECA, the Secretary of Labor may review an award for or against
payment of compensation at any time on his own motion or on application.
10

20 C.F.R. § 10.606(b)(3).

3

When a claimant failed to meet one of the above standards, OWCP will deny the application for
review without reopening the case for a review on the merits.11
The submission of evidence which repeats or duplicates evidence already in the case
record, and the submission of evidence which does not address the particular issue involved, does
not constitute a basis for reopening a case.13
12

ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of the claim pursuant to 5 U.S.C. 8128(a).
In her September 18, 2017 request for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law, or advance a relevant legal argument not
previously considered by OWCP. She is not entitled to a review of the merits of her claim based
on the first and second above-noted requirements under section 10.606(b)(3).
In support of her September 18, 2017 reconsideration request, appellant resubmitted the
July 26, 2017 report from Dr. Reddy. OWCP’s hearing representative’s September 7, 2017
decision reviewed this report. The Board has held that evidence which is repetitive or duplicative
of evidence already of record is insufficient to warrant further merit review.14
The Board accordingly finds that appellant was not entitled to a merit review of the claim.
Appellant did not show that OWCP erroneously applied or interpreted a specific point of law,
advance a relevant legal argument not previously considered by OWCP, or submit relevant and
pertinent new evidence not previously considered by OWCP. Pursuant to 20 C.F.R.
§ 10.606(b)(3), OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

11

Id. at § 10.608(b).

12

T.H., Docket Nos. 17-1578 & 17-1651 (issued April 26, 2018); M.D., Docket No. 17-1250 (issued April 24,
2018); Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).
13

T.H., M.D., id.; Edward Matthew Diekemper, 31 ECAB 224-25 (1979).

14

T.H., M.D., id.; A.L., Docket No. 08-1730 (issued March 16, 2009).

4

ORDER
IT IS HEREBY ORDERED THAT the September 22, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 9, 2018
Washington, DC

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

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

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

5


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

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

Docket No. 11-1557
Issued: March 5, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 21, 2011 appellant filed a timely appeal from a March 28, 2011 merit decision of
the Office of Workers’ Compensation Programs (OWCP) denying his claim for an increased
schedule award.1 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 the claim.
ISSUE
The issue is whether appellant has more than 16 percent permanent impairment of the left
upper extremity.

1

The March 28, 2011 OWCP decision is a corrected version of the March 24, 2011 decision appellant appealed.

2

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On July 13, 2004 appellant, then a 52-year-old distribution window clerk, filed an
occupational disease claim for shoulder pain he had been experiencing since October 1, 2003,
which he attributed to the repetitive nature of his federal duties. OWCP accepted the claim for
other affections of the left shoulder region and sprain/strain of left rotator cuff and paid benefits.
Appellant underwent a May 8, 2006 left shoulder surgery with rotator cuff repair and distal
clavicle resection. By decision dated January 9, 2008, OWCP granted a schedule award for 16
percent permanent impairment of the left arm. Appellant retired from the employing
establishment on October 2003.
On March 1, 2011 appellant requested an increased schedule award for his left arm. In a
December 16, 2010 report, Dr. Mike Shah, a Board-certified internist, noted the history of injury,
reviewed the medical records and presented findings on examination. He stated that appellant
reached maximum medical improvement on December 16, 2010. Under the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment, (A.M.A.,
Guides), Dr. Shah found that appellant had 11 percent left arm impairment. Ten percent
impairment was due to shoulder range of motion deficit. Under Table 15-34, page 475, Dr. Shah
found 160 degrees flexion equaled three percent impairment; 58 degrees extension equaled zero
percent impairment; 60 degrees internal rotation equaled two percent impairment; 54 degrees
external rotation equaled two percent impairment; 120 degrees abduction equaled three percent
impairment; and 45 degrees adduction equaled zero percent impairment. Under Table 15-35,
page 477, he found that the grade modifier resulting from the 10 percent upper extremity
impairment was consistent with grade modifier 1. Under Table 15-7, page 406, Dr. Shah found
both the functional history adjustment for both the symptoms and QuickDASH (with a total score
of 61.4) was consistent with grade modifier 3. Utilizing Table 15-36, page 477, he found that the
functional history grade adjustment resulted in a difference of 2 for a total range of motion
impairment, which when multiplied by 10 percent (10 percent times 10 percent) equaled 1
percent net modifier. Thus, Dr. Shah found that appellant had a total upper extremity
impairment of 11 percent.
On March 22, 2011 an OWCP medical adviser reviewed appellant’s medical record, a
statement of accepted facts and Dr. Shah’s December 15, 2010 report. The medical adviser
agreed with Dr. Shah’s rating under the A.M.A., Guides that appellant had 11 percent left arm
impairment. The medical adviser further determined that since appellant previously received 16
percent permanent impairment for the left upper extremity based on abnormality in the left
shoulder, that amount should be subtracted from the current determination of 11 percent
(11 percent minus 16 percent), which totaled no additional impairment.
By decision dated March 28, 2011, OWCP denied an additional schedule award.3

3

As previously noted, the March 28, 2011 decision corrects a March 24, 2011 decision.

2

LEGAL PRECEDENT
A claim for an increased schedule award may be based on new exposure.4 Absent any
new exposure to employment factors, a claim for an increased schedule award may also be based
on medical evidence indicating that the progression of an employment-related condition has
resulted in a greater permanent impairment than previously calculated.5
In determining entitlement to a schedule award, preexisting impairment to the scheduled
member should be included.6 Any previous impairment to the member under consideration is
included in calculating the percentage of loss except when the prior impairment is due to a
previous work-related injury, in which case the percentage already paid is subtracted from the
total percentage of impairment.7
The schedule award provision of FECA and its implementing regulations8 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss shall be determined. The method used in
making such a determination is a matter that rests within the sound discretion of OWCP.9 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.10 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.11
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.12

4

A.A., 59 ECAB 726 (2008); Tommy R. Martin, 56 ECAB 273 (2005); Rose V. Ford, 55 ECAB 449 (2004).

5

James R. Hentz, 56 ECAB 573 (2005); Linda T. Brown, 51 ECAB 115 (1999).

6

Carol A. Smart, 57 ECAB 340 (2006); Michael C. Milner, 53 ECAB 446 (2002).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter
2.808.7(a)(2) (January 2010).
8

20 C.F.R. § 10.404.

9

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

10

Ronald R. Kraynak, 53 ECAB 130 (2001).

11

Federal (FECA) Procedure Manual, supra note 7, Chapter 2.808.6.6a (January 2010); see also Part 3 -Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
12

See supra note 7, Chapter 2.808.6(d) (August 2002).

3

ANALYSIS
OWCP accepted that appellant sustained right shoulder strain, right rotator cuff tear,
unspecified disorder of left shoulder region due to his October 1, 2003 employment injury. On
January 9, 2008 appellant received a schedule award for a 16 percent permanent impairment of
the left upper extremity. By decision dated March 28, 2011, OWCP found that he was not
entitled to an additional schedule award. The issue is whether the medical evidence establishes
that appellant sustained an increased impairment of his left upper extremity.
In a December 16, 2010 report, Dr. Shah opined that appellant reached maximum
medical improvement and that he had 11 percent permanent impairment of the left arm as
calculated under the sixth edition of the A.M.A, Guides. He found that appellant had 10 percent
impairment due to shoulder range of motion deficit under Table 15-34, page 475. This was
comprised of 160 degrees flexion or three percent impairment; 58 degrees extension or zero
percent impairment; 60 degrees internal rotation or two percent impairment; 54 degrees external
rotation or two percent impairment; 120 degrees abduction or three percent impairment; and 45
degrees adduction or zero percent impairment. Under Table 15-35, page 477, the grade modifier
resulting from the 10 percent upper extremity impairment was consistent with grade modifier 1.
Under Table 15-7, page 406, the functional history adjustment for both the symptoms and
QuickDASH (with a total score of 61.4) was consistent with grade modifier 3. Under Table 1536, page 477, the functional history grade adjustment resulted in a difference of 2 for a total
range of motion impairment, which when multiplied by 10 percent (10 percent times 10 percent)
equaled 1 percent net modifier. Thus, appellant’s total upper extremity impairment is 11 percent
(10 percent plus 1 percent). The Board finds that Dr. Shah properly utilized the A.M.A., Guides
in determining appellant’s impairment of the left upper extremity. The Board notes that
Dr. Shah’s 11 percent impairment of the left upper extremity due to appellant’s shoulder
condition is less than the 16 percent impairment rating for which he received a schedule award
on January 9, 2008, also for his shoulder condition.
OWCP’s medical adviser reviewed Dr. Shah’s impairment evaluation on March 22, 2011.
He concurred with Dr. Shah’s impairment rating, as noted above. The medical adviser also
properly subtracted the 11 percent impairment from the previously awarded 16 percent
impairment of the left arm as both impairment ratings pertained to the same shoulder injury, to
find that appellant did not establish more than the 16 percent impairment of the left arm, as was
previously awarded.13 Consequently, the weight of the medical evidence establishes that
appellant has no more than 16 percent impairment of the left arm, as was previously awarded.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.

13

See supra note 7.

4

CONCLUSION
The Board finds that appellant did not establish entitlement to an additional award in this
case.
ORDER
IT IS HEREBY ORDERED THAT the March 28, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 5, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.B., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, Portsmouth, VA, Employer
__________________________________________

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

Docket No. 14-1518
Issued: January 9, 2015

Case Submitted on the Record

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

JURISDICTION
On June 24, 2014 appellant filed a timely appeal from the April 8, 2014 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish more than an eight
percent permanent impairment of his right leg, for which he received a schedule award.
FACTUAL HISTORY
OWCP accepted that on April 5, 1999 appellant, then a 31-year-old nuclear machinist,
sustained a lumbar strain due to handling a piece of metal in a lathe while at work. The accepted
conditions were later expanded to include right herniated L5-S1 disc. On February 28, 2000
1

5 U.S.C. §§ 8101-8193.

appellant underwent OWCP-authorized surgery at that level, including laminectomy,
hemilaminotomy, and partial disc excision.
In a March 24, 2009 decision, OWCP granted appellant a schedule award for a three
percent permanent impairment of his right leg. The award ran from September 3 to
November 2, 2006.
In an August 27, 2009 report, Dr. Felix M. Kirven, an attending Board-certified
orthopedic surgeon, provided an impairment rating under the standards of the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed.
2009). He stated:
“Based upon [the sixth edition of the A.M.A., Guides], Chapter 16, pages 530555, [appellant] has a 20 percent impairment rating with respect to lower
extremity numbness, i.e., the L1, L2, L3 dermatomes on the right. As far as his
seizure disorder, i.e., epilepsy is concerned related to medication, [appellant] has a
15 percent [whole person] impairment rating. This is based on Chapter 13; Table
13-5, 13-6.”
In a November 20, 2009 decision, an OWCP hearing representative set aside OWCP’s
March 24, 2009 decision and remanded the case to OWCP for consideration of Dr. Kirven’s
August 27, 2009 report by an OWCP medical adviser.
On December 5, 2009 Dr. Lawrence A. Manning, a Board-certified orthopedic surgeon
serving as an OWCP medical adviser, determined that Dr. Kirven’s August 27, 2009 impairment
rating was not derived in accordance with the standards of the sixth edition of the A.M.A.,
Guides. He found that appellant had an eight percent permanent impairment of his right leg based
on restricted right ankle motion and sensory deficits of the right lateral femoral cutaneous and
femoral nerves.
In a February 22, 2010 decision, OWCP granted appellant a schedule award for an
additional five percent permanent impairment of his right leg.2 The award ran from November 3,
2006 to February 11, 2007 and was based on the December 5, 2009 report of Dr. Manning.
Appellant now had been compensated for a total right leg impairment of eight percent.
In an August 20, 2010 report, Dr. Kirven stated that, under Chapter 16 of the sixth edition
of the A.M.A., Guides, appellant had 10 percent impairment with regard to permanent dysesthetic
pain and numbness in the distribution of the lateral femoral cutaneous nerve. He noted:
“[Appellant] has a 10 percent impairment rating with regards to dysesthesia and
dysfunction in the L3 dermatome secondary to his lumbar laminectomies.
(Chapter 17, pages 557-599). As far as [appellant’s] seizure disorder with
memory dysfunction, based on Chapter 13, pages 321-344, has a 15 percent
[whole person] impairment rating. This is related to his Demerol and Ultram

2

The award inadvertently indicated that it was for appellant’s right arm.

2

which caused convulsions and he subsequently has lapse in memory secondary to
the above.”
In an August 31, 2011 report, Dr. Morley Slutsky, a Board-certified occupational
medicine physician serving as an OWCP medical adviser, determined that Dr. Kirven’s
August 20, 2010 impairment rating was not derived in accordance with the standards of the sixth
edition of the A.M.A., Guides. He applied Table 16-11 and Table 16-12 on pages 533 and 534 of
the sixth edition of the A.M.A., Guides to find that appellant had a two percent impairment of his
right leg due to sensory deficits in his right lateral femoral cutaneous nerve.
In a September 30, 2011 decision, OWCP affirmed its February 22, 2010 decision
denying appellant’s claim for increased schedule award compensation.3 It found that the record
did not contain a proper impairment rating under the sixth edition of the A.M.A., Guides which
showed that appellant had more than an eight percent permanent impairment of his right leg.
In a May 3, 2012 letter, appellant indicated that he was awaiting the receipt of the
additional schedule award for a nine percent permanent impairment, as denoted in OWCP’s
September 30, 2011 decision.
In a February 18, 2014 letter, OWCP advised appellant that its September 30, 2011
decision contained erroneous information. It stated, “The cover sheet indicated that your award
be increased to include an additional 9 percent (14 percent inclusive), however the attached
[n]otice of [d]ecision stated that your [r]econsideration was denial of modification. Under the
Director’s own motion our office is reopening and vacating your claim for further development
in order to preserve your appeal rights.”
In an April 8, 2014 decision, OWCP affirmed its earlier decisions denying appellant’s
claim for increased schedule award compensation. As noted in the February 18, 2014 letter, it
appears that OWCP’s primary reason for issuing the decision was to preserve appellant’s appeal
rights.
LEGAL PRECEDENT
The schedule award provision of FECA4 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, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
3

The cover letter of the decision indicated that OWCP’s February 22, 2010 decision would be modified and that
appellant’s award would be “increased to include 9 percent addition (14 percent inclusive).” However, this appears
to have been an inadvertent clerical error since the memorandum constituting the body of the decision as well as
OWCP’s letter dated February 18, 2014, described herein, show that OWCP found that appellant had no additional
impairment beyond that for which he had previously received schedule awards.
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404 (1999).

3

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
Schedule awards are not payable for the loss, or loss of use, of a part of the body that is not
specifically enumerated under FECA. Neither FECA nor its implementing regulations provide for a
schedule award for impairment to the back or to the body as a whole. Furthermore, the back is
specifically excluded from the definition of organ under FECA.8
ANALYSIS
OWCP accepted that appellant sustained a lumbar strain on April 5, 1999 due to handling
a piece of metal in a lathe at work. The accepted conditions were later expanded to include right
herniated L5-S1 disc. On February 28, 2000 appellant underwent OWCP-authorized surgery at
that level, including laminectomy, hemilaminotomy, and partial disc excision. In a March 24,
2009 decision, OWCP granted him a schedule award for a three percent permanent impairment
of his right leg. In a February 22, 2010 decision, it granted appellant a schedule award for an
additional five percent permanent impairment of his right leg. To this point, appellant had been
compensated for a total right leg impairment of eight percent.
Appellant did not meet his burden of proof to submit medical evidence showing that he
has more than an eight percent permanent impairment of his right leg under the standards of the
sixth edition of the A.M.A., Guides. He submitted August 27, 2009 and August 20, 2010 reports
of Dr. Kirven, an attending Board-certified orthopedic surgeon, which suggested that he had
more than an eight percent impairment of his right leg. However, Dr. Kirven’s August 27, 2009
and August 20, 2010 opinions on permanent impairment are of limited probative value because
they were not derived in accordance with the standards adopted by OWCP and approved by the
Board as appropriate for evaluating schedule losses.9
For example, although Dr. Kirven indicated that appellant had right leg impairment due
to right peripheral nerve impairment, he did not explain how the relevant standards of the sixth
edition of the A.M.A., Guides showed that appellant had such a high level of impairment. He
did not explain whether he applied Table 16-11 on page 533 of the sixth edition to calculate the
level of sensory deficit in accordance with the medical findings of record. Dr. Kirven also
provided whole person impairments based on appellant’s epilepsy condition, but FECA does not
provide for an award for such a whole person impairment.10 He calculated impairment ratings
6

Id.

7

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

8

James E. Mills, 43 ECAB 215, 219 (1991); James E. Jenkins, 39 ECAB 860, 866 (1990).

9

See James Kennedy, Jr., 40 ECAB 620, 626 (1989) (finding that an opinion which is not based upon the
standards adopted by OWCP and approved by the Board as appropriate for evaluating schedule losses is of little
probative value in determining the extent of a claimant’s permanent impairment).
10

See supra note 8.

4

for the back under Chapter 17 but FECA does not provide schedule awards for impairment of the
back itself.11
On appeal, appellant alleged that he was entitled to schedule award compensation for an
additional nine percent permanent impairment of his right leg because such an additional award
was mentioned in OWCP’s September 30, 2011 decision. However, OWCP advised him that the
notation in the September 30, 2011 decision regarding an additional nine percent impairment
rating was in error and that the body of the decision clearly showed that OWCP was affirming its
prior determination that he had not shown that he had more than an eight percent permanent
impairment of his right leg.
The record does not contain any medical report showing that appellant has more than an
eight percent permanent impairment of his back, for which he received schedule awards.
Appellant may request a schedule award or increased schedule award based on evidence of a
new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he has
more than an eight percent permanent impairment of his right leg, for which he received a
schedule award.

11

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the April 8, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 9, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6