United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Pine Valley, CA, Employer
__________________________________________

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

Docket No. 19-1081
Issued: September 24, 2020

Case Submitted on the Record

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

JURISDICTION
On April 17, 2019 appellant filed a timely appeal from February 4 and April 2, 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.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish more than
10 percent permanent impairment of the right lower extremity for which he previously received a
schedule award; (2) whether OWCP properly determined that appellant received an overpayment
of compensation in the amount of $20,203.20, for which he was not at fault, for the period
October 2, 2014 to January 20, 2015 because he received schedule award compensation for the

1

5 U.S.C. § 8101 et seq.

left lower extremity to which he was not entitled; and (3) whether OWCP properly denied waiver
of recovery of the overpayment of compensation.
FACTUAL HISTORY
On May 17, 2013 appellant, then a 40-year-old border patrol agent, filed a traumatic injury
claim (Form CA-1) alleging that on May 9, 2013 he felt acute low back pain when retrieving a
spare tire from the back of his vehicle, while in the performance of duty. OWCP accepted the
claim for lumbar strain and left shoulder sprain. It subsequently expanded acceptance of the claim
to include displacement of a lumbar intervertebral disc without myelopathy.2
On May 19, 2014 appellant underwent a hemilaminectomy on the right side with a partial
facetectomy and foraminotomy and excision of a herniated nucleus pulposus (HNP) at L5-S1. On
July 2, 2014 he underwent left shoulder surgery. On September 4, 2014 appellant resumed
modified employment.
On December 10, 2014 appellant filed a claim for a schedule award (Form CA-7).
In a report dated October 2, 2014, Dr. Michael R. Lenihan, a Board-certified orthopedic
surgeon, diagnosed an HNP at L5-S1 with right radiculopathy at the S1 distribution.3 He discussed
appellant’s complaints of pain and numbness in the right lower extremity. On examination
Dr. Lenihan found reduced sensation in the S1 dermatome on the left versus the right and reduced
motor strength at the S1 dermatome on repetitive toe raising on the right as compared to the left.
He opined that appellant had moderate sensory deficit from the S1 nerve root using Table 16-12
on page 535 of the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (A.M.A., Guides),4 which yielded nine percent permanent impairment.
Dr. Lenihan further found a four percent sensory deficit, which he combined to find 13 percent
permanent impairment of the right lower extremity. He advised that appellant’s condition was
permanent and stationary.
On January 31, 2015 Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving as
a district medical adviser (DMA), noted that appellant had undergone a right-sided
hemilaminectomy, partial facetectomy, foraminotomy, and L5-S1 disc excision. Citing The
Guides Newsletter, Rating Spinal Nerve Extremity Impairment Using the Sixth Edition
(July/August 2009) (The Guides Newsletter), he found that appellant had five percent permanent
impairment due to S1 radiculopathy. Dr. Harris indicated that the impairment was of the left lower
extremity, rather than the right as found by Dr. Lenihan.

2

OWCP previously accepted that appellant sustained a left open fracture of the fibula, a right fracture of carpal
bone, a left fracture of the ankle, a closed fracture of the tibia with fibula, a right closed fracture of the scaphoid bone
of the wrist, right joint derangement of the forearm, localized primary osteoarthritis of the forearm, a right closed wrist
dislocation, and a right nonunion fracture due to a September 28, 2011 employment-related motor vehicle accident,
assigned OWCP File No. xxxxxx043.
3

Dr. Lenihan also provided findings regarding appellant’s left upper extremity.

4

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

2

By decision dated March 11, 2015, OWCP granted appellant a schedule award for 11
percent permanent impairment of the left upper extremity and 5 percent permanent impairment of
the left lower extremity. It indicated that it was paying him 34.32 weeks of compensation for the
left arm and 14.4 weeks of compensation for the left leg. After cost-of-living adjustments,
appellant’s weekly compensation was $1,403.00 beginning March 1, 2014. The period of the
award ran from October 2, 2014 to September 8, 2015.
On April 10, 2017 appellant underwent a bilateral laminectomy at L4-5 with a
hemifacetectomy, foraminotomy, and discectomy at L5-S1. He stopped work on that date and
returned to work on September 7, 2017.
In an impairment evaluation dated October 31, 2017, Dr. Lenihan noted that on May 9,
2013 appellant had experienced low back pain radiating into the right lower extremity when he
lifted a spare tire for his work vehicle. He advised that a July 17, 2013 magnetic resonance imaging
(MRI) scan showed a large L5-S1 disc extrusion with a more focal extrusion on the right causing
a “mass effect on the descending nerve roots, right greater than left” and a small L4-5 disc
protrusion with mild narrowing of the left lateral recess. Dr. Lenihan indicated that appellant
complained of back pain radiating bilaterally into the gluteus and down the right leg into the foot.
He noted that he also had mild symptoms on the left side. Dr. Lenihan found reduced calf
circumference and mild gastrocsoleus weakness on the right compared to the left and a loss of
sensation in the S1 dermatome. He advised that appellant had nine percent permanent “lower
extremity impairment” due to a mild motor deficit at S1 using Table 16-12 of the A.M.A., Guides.
On January 24, 2018 appellant filed a Form CA-7 requesting an additional schedule award.
On July 12, 2018 Dr. Harris found that, according to The Guides Newsletter, appellant had
2 percent permanent impairment due to S1 right radiculopathy and 8 percent permanent
impairment due-to-moderate motor weakness at S1 on the right, for a total right lower extremity
impairment of 10 percent. He found that appellant had no “neurologic deficit in the lower
extremity consistent with lumbar radiculopathy” on the left side. Dr. Harris explained that
appellant had zero percent sensory and zero percent motor deficit of the left lower extremity, which
resulted in zero percent permanent impairment of the left lower extremity impairment for lumbar
radiculopathy. He noted that appellant had previously received an award for five percent
permanent impairment of the left lower extremity. Dr. Harris opined that appellant had sustained
no increase in his permanent impairment of the left lower extremity.
By decision dated February 4, 2019, OWCP granted appellant a schedule award for 10
percent permanent impairment of the right lower extremity. The period of the award ran for 28.8
weeks from October 31, 2017 to May 20, 2018.
In a preliminary overpayment determination dated February 19, 2019, OWCP advised
appellant that he had received an overpayment of compensation in the amount of $20,203.20
because he had previously received a schedule award for five percent permanent impairment of
the left lower extremity when he had no left lower extremity impairment. It explained that he had
received 14.4 weeks of compensation at the rate of $1,403.00 a week for his left leg for a total
overpayment amount of $20,203.20. OWCP further advised appellant of its preliminary finding
that he was not at fault in the creation of the overpayment and provided an overpayment recovery

3

questionnaire (Form OWCP-20) for his completion. It afforded him 30 days to respond and submit
supporting financial documentation. OWCP further notified appellant that, within 30 days of the
date of the letter, he could request a telephone conference, a final decision based on the written
evidence, or a prerecoupment hearing.
On March 12, 2019 appellant requested a decision based on the written evidence. He
submitted a completed Form OWCP-20 reporting monthly income of $6,200.00 and monthly
expenses of $6,200.00. Under other funds, appellant reported $60.00 cash on hand, a checking
account balance of $1,147.00, and a savings account balance of $2,025.00. He also listed his
claimed expenses as: rent or mortgage -- $2,000.00; food -- $1,000.00; clothing -- $600.00;
utilities -- $1,000.00; other expenses -- $1,200.00; and Internal Revenue Service (IRS) -- $400.00.
Appellant indicated that he had received a lump-sum direct deposit for the schedule award. He
asserted that he was without fault and would suffer severe financial hardship to repay the debt
especially as he was going through divorce proceedings. Appellant submitted a bank statement
from February 8 to March 7, 2019 from showing a checking account balance of $1,147.77 and a
savings account balance of $2,025.01, a statement from the IRS noting a balance of $2,649.71, a
mortgage statement form reflecting a monthly payment of $1,972.76, a public utility bill for
$134.04 and a copy of a pleading filed in Superior Court of California-County of Imperial, Family
Law court.
By decision dated April 2, 2019, OWCP finalized the overpayment of compensation in the
amount of $20,203.20, for which he was not at fault, finding that it had paid appellant a schedule
award for five percent impairment of the left lower extremity when he had no permanent percent
impairment of the left lower extremity. It calculated that he had received 14.4 weeks of
compensation at the rate of $1,403.00 a week for his left lower extremity, for a total overpayment
amount of $20,203.20. OWCP denied waiver of recovery of the overpayment of compensation,
noting that appellant had not fully documented his expenses. It determined that his monthly
income exceeded his expenses such that he was not entitled to waiver of recovery of the
overpayment. OWCP noted that although appellant had submitted financial information in support
of waiver, he had not provided supporting documentation for the following claimed amounts: food
of $1,000.00 a month; clothing of $600.00 a month; utilities of $1,000.00 a month; and other
expenses of $1,200.00 a month. It calculated his expenses as $5,334.04 per month.5 As appellant’s
income exceeded his expenses by more than $50.00, OWCP found that he was not entitled to
waiver of recovery of the overpayment. It requested that he forward payment of $500.00 a month
to repay the overpayment.

5

OWCP calculated monthly costs of food $1,000.00, clothing of $600.00, mortgage of $2,000.00, electricity of
$134.04, and home maintenance of $1,200.00 for expenses of $4,934.04. In addition to these expenses appellant paid
$400.00 a month to the IRS for total expenses of $5,334.04. Total net income of $6,200.00 minus total monthly
household expenses of $5,334.04 is a surplus of $865.96 a month.

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LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA,6 and its implementing federal regulations,7 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 loss of a member shall be
determined. The method used in making such a determination is a matter which rests in the
discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized
the use of a single set of tables so that there may be uniform standards applicable to all claimants.
OWCP evaluates the degree of permanent impairment according to the standards set forth in the
specified edition of the A.M.A., Guides, published in 2009.8 The Board has approved the use by
OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes.9
Neither FECA nor its implementing regulations provide for the payment of a schedule
award for the permanent loss of use of the back/spine or the body as a whole. However, a schedule
award is permissible where the employment-related spinal condition affects the upper and/or lower
extremities.10 The sixth edition of the A.M.A., Guides provides a specific methodology for rating
spinal nerve extremity impairment in The Guides Newsletter. It was designed for situations where
a particular jurisdiction, such as FECA, mandated ratings for extremities and precluded ratings for
the spine. FECA-approved methodology is premised on evidence of radiculopathy affecting the
upper and/or lower extremities. The appropriate tables for rating spinal nerve extremity
impairment are incorporated into OWCP’s procedures.11
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of
impairment specified.12

6

Supra note 1.

7

20 C.F.R. § 10.404.

8

For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides, (6th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017); see also id. Chapter 3.700, Exhibit 1 (January 2010).
9

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

10

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see A.G., Docket No. 18-0815 (issued January 24, 2019);
Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).
11

Supra note 8 at Chapter 3.700, Exhibit 4 (January 2010).

12

See supra note 8 at Chapter 2.808.6(f) (March 2017).

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ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish more than 10
percent permanent impairment of the right lower extremity for which he previously received a
schedule award.
In an October 2, 2014 impairment evaluation, Dr. Lenihan discussed appellant’s
complaints of numbness and pain in the right lower extremity and diagnosed an HNP at L5-S1
with right radiculopathy at the S1 distribution. He found that appellant had 13 percent permanent
impairment of the right lower extremity.
On January 31, 2015 Dr. Harris reviewed Dr. Lenihan’s report. He applied The Guides
Newsletter to the findings of Dr. Lenihan and opined that appellant had five percent permanent
impairment of the left lower extremity. Based on Dr. Harris’ opinion, OWCP granted him a
schedule award for five percent permanent impairment of the left lower extremity. However, as
noted, Dr. Lenihan found that appellant had permanent impairment of the right rather than the left
lower extremity. It appears that Dr. Harris made a typographical error in finding five percent of
the left rather than the right lower extremity.
Appellant subsequently requested an increased schedule award. He submitted an
October 31, 2017 report from Dr. Lenihan, who noted that appellant continued to experience back
pain radiating bilaterally into the gluteus and down the right leg into the foot. Dr. Lenihan further
indicated that appellant had mild left-sided symptoms. He found that appellant had reduced
sensation at the S1 dermatome and mild weakness and reduced calf circumference on the right
side. Dr. Lenihan opined that he had nine percent permanent impairment due to a mild motor
deficit at S1. His report, however, lacks probative value as he failed to use The Guides Newsletter
in calculating appellant’s permanent impairment.13
On July 12, 2018 Dr. Harris reviewed Dr. Lenihan’s report and opined that appellant had
8 percent permanent impairment of the right lower extremity due to residual motor weakness from
radiculopathy at S1 and 2 percent permanent impairment of the right lower extremity for pain and
impaired sensation from S1 lumbar radiculopathy, which he combined to find 10 percent
permanent impairment of the right lower extremity. The Board finds that Dr. Harris appropriately
applied the appropriate tables and grade schemes of The Guides Newsletter to the examination
findings. The record contains no medical evidence in accordance with The Guides Newsletter
demonstrating a greater percentage impairment of the right lower extremity.14
Appellant may request a schedule award or increased schedule award at any time 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

A.H., Docket No. 19-1788 (issued March 17, 2020); A.R., Docket No. 17-1504 (issued May 25, 2018).

14
See T.K., Docket No. 19-1222 (issued December 2, 2019); C.S., Docket No. 18-0920 (issued
September 23, 2019).

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LEGAL PRECEDENT -- ISSUE 2
If a claimant received a schedule award and the medical evidence does not support the
degree of permanent impairment awarded, an overpayment of compensation may be created.15
Claims for an increased schedule award based on the same edition of the A.M.A., Guides are
subject to overpayment.16
It is well established that a claimant is entitled to a decision that contains findings of fact
and a statement of reasons.17 A decision denying a claim should contain a correct description of
the basis for the denial in order that the parties of interest have a clear understanding of the precise
defect of the claim and the kind of evidence which would overcome it.18
ANALYSIS -- ISSUE 2
The Board finds that OWCP improperly determined that appellant received an
overpayment of compensation in the amount of $20,203.20, for which he was not at fault, for the
period October 2, 2014 to January 20, 2015 because he received schedule award compensation for
the left lower extremity to which he was not entitled.
By decision dated March 11, 2015, OWCP granted appellant a schedule award for five
percent permanent impairment of the left lower extremity. It paid him 14.4 weeks of compensation
for the left lower extremity at a weekly rate of $1,403.00.
Appellant subsequently requested an increased schedule award. OWCP, however, did not
issue a decision either denying or granting appellant a schedule award for the claimed increased
permanent impairment of his left lower extremity. It only issued a decision granting appellant a
schedule award for 10 percent permanent impairment of the right lower extremity. Nonetheless,
when issuing its preliminary and final determinations declaring an overpayment of compensation
in the amount of $20,203.20, it found that appellant had no permanent impairment of the left lower
extremity and thus his receipt of a schedule award for five percent permanent impairment of the
left lower extremity on March 11, 2015 constituted an overpayment of compensation. In reaching
this finding, OWCP relied upon the July 12, 2018 report of Dr. Harris, the DMA. Section 8124(a)
of FECA provides that OWCP shall determine and make a finding of fact and make an award for
or against payment of compensation.19 Section 10.126 of Title 20 of the Code of Federal
Regulations provides that the decision of the Director of OWCP shall contain findings of fact and
a statement of reasons.20 OWCP’s procedures provide that the reasoning behind OWCP’s
evaluation should be clear enough for the reader to understand the precise defect of the claim and
15

Supra note 8 at Chapter 2.808.9(e) (February 2013).

16

Id.; see also P.D., Docket 18-0442 (issued July 11, 2018).

17

See M.M., Docket No. 14-1166 (issued December 1, 2014); 20 C.F.R. § 10.126.

18

O.M., Docket No. 19-0342 (issued November 15, 2019); Patrick Michael Duffy, 43 ECAB 280 (1991).

19

5 U.S.C. § 8124(a).

20

20 C.F.R. § 10.126.

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the kind of evidence which would overcome it.21 These requirements are supported by Board
precedent.22
The Board finds that appellant was entitled to a final decision on his request for an
increased schedule award for the left lower extremity which contained findings of fact and a
statement of reasons.23 As OWCP did not issue a final decision on appellant’s claim for an
increased schedule award for the left lower extremity, the Board thus finds that it was premature
and improper for OWCP to declare and issue a decision finding an overpayment of compensation
on the basis that he was not entitled to a schedule award for a left lower extremity impairment.
Accordingly, the Board finds that OWCP has not established fact of overpayment. The
record does not establish that appellant was not entitled to the previously paid five percent
permanent impairment of the left lower extremity24 as OWCP did not render a final decision on
this issue. Therefore, the Board will reverse OWCP’s April 2, 2019 decision.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish more than 10
percent permanent impairment of the right lower extremity for which he received a schedule
award. The Board further finds that OWCP improperly determined that he received an
overpayment of compensation in the amount of $20,203.20, for which he was not at fault, for the
period October 2, 2014 to January 20, 2015 because he received schedule award compensation for
the left lower extremity to which he was not entitled.25

21

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013).

22
C.M., Docket No. 20-0428 (issued August 25, 2020); R.P., Docket No. 18-1128 (issued December 17, 2018);
R.B., Docket No. 16-1696 (issued September 7, 2017); James D. Boller, Jr., 12 ECAB 45, 46 (1960).
23

See supra note 18.

24

See A.S., Docket No. 13-1102 (issued October 29, 2013).

25

In view of the Board’s disposition of Issue 2, Issue 3 is rendered moot.

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ORDER
IT IS HEREBY ORDERED THAT the April 2, 2019 decision of the Office of Workers’
Compensation Programs is reversed and the February 4, 2019 decision is affirmed.
Issued: September 24, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
DEPARTMENT OF AGRICULTURE, FOREST
SERVICE, Albuquerque, NM, Employer
__________________________________________

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

Docket No. 09-827
Issued: October 19, 2009

Case Submitted on the Record

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

JURISDICTION
On February 5, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated May 6, 2008. The record also contains a
November 17, 2008 Office decision denying further merit review of the claim. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant timely filed his claim for an employment-related
hearing loss under 5 U.S.C. § 8122; and (2) whether the Office properly refused to reopen the
case for merit review pursuant to 5 U.S.C. § 8128.
FACTUAL HISTORY
On November 16, 2007 appellant, then 65-year-old retired forestry technician, filed an
occupational claim (Form CA-2) alleging that he sustained hearing loss causally related to his
federal employment. He was exposed to noise from chainsaws, drills, snowmobiles and other
equipment. In response to a question as to the date he first realized his condition was caused or

aggravated by his federal employment, appellant reported “approx[imately] 1986.” The reverse
of the claim form indicated that he retired from federal employment in 1997.
By letter dated February 1, 2008, the Office requested additional information, including
the date appellant first realized his hearing loss was related to work exposure, with explanation.
In a February 7, 2008 response, appellant indicated that he worked until December 9, 1984 as a
forestry technician and then worked as a forester. His work as a forester involved little or no
noise exposure and field crews were provided with hearing protection. Appellant retired on
January 2, 1997. In a response received on May 1, 2008, he stated, “By the 1980’s, hearing loss
due to loud noise was being discussed at safety meetings and hearing protection was provided for
workers. I realized then that loud noise exposure at work was responsible for part of my hearing
loss.” Appellant also noted that his hearing aid provider told him that, since he had been
exposed to loud noise at work, he may be entitled to compensation.
In a decision dated May 6, 2008, the Office denied the claim for compensation on the
grounds that it was not timely filed under 5 U.S.C. § 8122.
Appellant requested reconsideration by letter dated October 21, 2008. He stated that he
was not told he could file a hearing loss claim or he would have done so earlier. Appellant stated
that he knew of two other federal employees who had retired and successfully filed claims for
hearing loss. He submitted a December 21, 2008 audiogram and an October 21, 2008 report
from Dr. Colin Doyle, an otolaryngologist, who noted that appellant had known for years that he
had a hearing problem, and was exposed to chainsaw noise while in federal employment.
By decision dated November 17, 2008, the Office determined appellant’s reconsideration
request was insufficient to warrant merit review of the claim.
LEGAL PRECEDENT -- ISSUE 1
Section 8122(a) of the Federal Employees’ Compensation Act states, “An original claim
for compensation for disability or death must be filed within three years after the injury or
death.” Under 5 U.S.C. § 8122(b), in latent disability cases the time limitation does not begin to
run until the claimant is aware, or by the exercise of reasonable diligence should have been
aware, of the causal relationship between the employment and the compensable disability. The
Board has held that, if an employee continues to be exposed to injurious working conditions after
such awareness, the time limitation begins to run on the last date of this exposure.1
The statute provides an exception to the three-year limit for filing, which states that a
claim may be regarded timely if an immediate superior had actual knowledge of the injury within
30 days, or if written notice of injury as specified in section 8119 was given within 30 days.2
The knowledge must be such as to put the immediate superior reasonably on notice of an on-thejob injury or death.3 The Board has held that a program of annual audiometric examinations
1

Garyleane A. Williams, 44 ECAB 441 (1993).

2

5 U.S.C. § 8122(a)(1) and (2).

3

Id. at § 8122(a)(1); Eddie L. Morgan, 45 ECAB 600 (1994).

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conducted by an employing establishment may constructively establish actual knowledge of a
hearing loss such as to put the immediate supervisor on notice of an on-the-job injury.4
ANALYSIS -- ISSUE 1
Appellant filed his claim for compensation on November 16, 2007. As noted, he must
file a claim within three years of the injury. As to when the time limitation period began to run,
the initial question is when appellant knew or should have known of causal relationship between
a hearing loss and his noise exposure at work. He advised that he was aware of such causal
relationship in approximately 1986, explaining that the issue was discussed in safety meetings
and he realized his hearing loss was employment related. As noted, if there is continued noise
exposure after such awareness, the time limitation period does not begin to run until the date of
last exposure.
In this case, there is little evidence regarding noise exposure after
December 9, 1984. Appellant reported “little or no” noise exposure as a forester and the
employing establishment did not appear to have additional information. Even if it is accepted
that some noise exposure continued, he retired on January 2, 1997 and the three-year time
limitation would expire on January 2, 2000.
With respect to a supervisor’s knowledge of the injury, no evidence was presented that a
supervisor had actual knowledge within 30 days or written notice was provided within 30 days.
In hearing loss cases, as noted above, there may be constructive knowledge if a pattern of the
employing establishment audiograms showed a progressive loss of hearing acuity. However,
here an employing establishment supervisor indicated that he was not aware of annual hearing
tests and the record contains only one audiogram dated prior to January 2, 1997. It is not clear
whether this audiogram was performed by the employing establishment. The Board finds that
the evidence does not establish constructive knowledge by an employing establishment
supervisor in this case.
On appeal, appellant contends that he does have hearing loss and that he is aware of other
federal employees who had claims for hearing loss accepted when filed after retirement.
However, each claim is determined by the specific factual circumstances and all employees filing
a claim under the Act are subject to the relevant time limitation period. Based on the facts in this
case, appellant’s claim was not filed within three years after the injury and, therefore, it is not
timely filed pursuant to 5 U.S.C. § 8122. The Office properly denied the November 16, 2007
claim for compensation.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the Act,5
the Office’s regulations provides that a claimant may obtain review of the merits of the claim by
submitting a written application for reconsideration that sets forth arguments and contains
4

Jose Salaz, 41 ECAB 743 (1990); Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter
2.801.6(c) (February 2000).
5

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application”).

3

evidence that either “(i) shows that OWCP erroneously applied or interpreted a specific point of
law; (ii) advances a relevant legal argument not previously considered by OWCP; or
(iii) constitutes relevant and pertinent evidence not previously considered by OWCP.”6 Section
10.608(b) states that any application for review that does not meet at least one of the
requirements listed in section 10.606(b)(2) will be denied by the Office without review of the
merits of the claim.7
ANALYSIS -- ISSUE 2
On reconsideration, appellant stated that it did not seem right that his claim was found
untimely and he did not know he could have filed a claim for hearing loss. He did not show that
the Office erroneously applied or interpreted a specific point of law or advance a relevant legal
argument not previously considered by the Office. With respect to new evidence, appellant
submitted a medical report from Dr. Doyle with a diagnosis of binaural hearing loss. Dr. Doyle
noted that he had been exposed to noise in federal employment and had been aware of hearing
problems for years, without further explanation. He did not provide any new evidence as to
when appellant knew or should have known of an employment-related hearing loss. The
underlying issue was the timeliness of the filing of the claim and appellant did not submit any
new and relevant evidence on this issue.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that the Office erroneously applied or interpreted
a specific point of law, advance a new and relevant legal argument or submit relevant and
pertinent evidence not previously considered by the Office. Pursuant to 20 C.F.R. § 10.608(b),
the Office properly denied merit review of the claim.
CONCLUSION
The Board finds that appellant’s claim for an employment-related hearing loss was
untimely filed. The application for reconsideration was not sufficient to warrant reopening the
claim for review of the merits.

6

20 C.F.R. § 10.606(b)(2).

7

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 17 and May 6, 2008 are affirmed.
Issued: October 19, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


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

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

Docket No. 18-0413
Issued: August 16, 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 December 19, 2017 appellant filed a timely appeal from an October 23, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has met his burden of proof to establish a left thumb abscess
causally related to an accepted July 3, 2017 employment incident.
FACTUAL HISTORY
On July 5, 2017 appellant, then a 53-year-old mail carrier, filed a traumatic injury claim
(Form CA-1) alleging that, while delivering mail on July 3, 2017, insects bit his left thumb, which
resulted in an abscess. He stopped work on July 6, 2017 and returned to work on July 17, 2017.
1

5 U.S.C. § 8101 et seq.

Appellant claimed continuation of pay (COP). An employing establishment supervisor signed the
form on September 12, 2017. The supervisor controverted COP for the reason of “finger abscess.”
In Box 23 of the form, titled “Date notice received,” the supervisor struck through the printed date
“July 3, 2017” and wrote “September 12, 2017” beneath it. The employing establishment
submitted the Form CA-1 to OWCP on September 12, 2017.
In support of his claim, appellant submitted a work status report dated July 5, 2017 from
Dr. Azim Ahmady, an attending Board-certified family practitioner, who held appellant off work
through July 7, 2017. He also provided a July 7, 2017 work status report from Dr. Phillip L.
Wagner, an attending physician Board-certified in occupational medicine, who diagnosed a left
finger abscess sustained on July 3, 2017. Dr. Wagner held appellant off work through
July 11, 2017.
By development letter dated September 19, 2017, OWCP notified appellant of the
deficiency of his claim and afforded him 30 days to submit additional medical and factual
evidence. Appellant was also provided a list of questions for his physician regarding how the
alleged employment incident would have caused the claimed left thumb abscess. OWCP
emphasized that a physician’s detailed, well-rationalized opinion on causal relationship was
crucial to establish appellant’s claim.
In response, appellant submitted a note dated October 6, 2017, asserting that he had given
a statement with his Form CA-1. He did not provide additional medical or factual evidence prior
to October 23, 2017.
By decision dated October 23, 2017, OWCP denied the claim as causal relationship had
not been established. It accepted that the July 3, 2017 employment incident occurred at the time,
place, and in the manner alleged. However, OWCP denied the claim as the medical evidence of
record contained insufficient rationale to establish causal relationship between the accepted
employment incident and the claimed left thumb abscess. It noted that as appellant’s claim was
denied, the employing establishment would charge any previously paid COP to his sick or annual
leave balance or declare it an overpayment.2
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
2

On March 8, 2018 OWCP issued a decision in this claim accepting the traumatic injury claim, and a second
decision also dated March 8, 2018 denying appellant’s claim for COP. However, the Board acquired jurisdiction over
the claim on December 19, 2017 when appellant filed his notice of appeal with the Board. Therefore, both March 8,
2018 OWCP decisions are null and void. The Board and OWCP may not have concurrent jurisdiction over the same
issue in a case. D.S., Docket No. 18-0061 (issued May 29, 2018). See Russell E. Lerman, 43 ECAB 770 (1992);
Douglas E. Billings, 41 ECAB 880 (1990); see also 20 C.F.R. § 501.2(c)(3).
3

Supra note 1.

2

employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To determine whether an employee sustained a traumatic injury in the performance of duty,
OWCP must determine whether fact of injury has been established. First, an employee has the
burden of proof to demonstrate the occurrence of an injury at the time, place, and in the manner
alleged, by a preponderance of the reliable, probative, and substantial evidence.6 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish a causal relationship between the employment incident and the alleged disability and/or
condition for which compensation is claimed.7 An employee may establish that the employment
incident occurred as alleged, but fail to show that his or her disability or condition relates to the
employment incident.8
Causal relationship is a medical question that generally requires rationalized medical
opinion evidence to resolve the issue.9 A physician’s opinion on whether there is a causal
relationship between the diagnosed condition and the implicated employment factor(s) must be
based on a complete factual and medical background.10 Additionally, the physician’s opinion must
be expressed in terms of a reasonable degree of medical certainty, and must be supported by
medical rationale, explaining the nature of the relationship between the diagnosed condition and
appellant’s specific employment factor(s).11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a left thumb
abscess causally related to an accepted July 3, 2017 employment incident.
The determination of whether an employment incident caused an injury is generally
established by medical evidence.12 Appellant submitted a July 5, 2017 work status report from
Dr. Ahmady, an attending Board-certified family practitioner, who did not provide a diagnosis.
Dr. Wagner, an attending physician Board-certified in occupational medicine, diagnosed a left
finger abscess on July 7, 2017. Although he noted July 3, 2017 as the date of injury, he did not
4

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

5

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

6

David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover, 51 ECAB 146 (1999).

7

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

8

D.J., Docket No. 17-0364 (issued April 13, 2018); K.B., Docket No. 17-1363 (issued February 14, 2018); Gary J.
Watling, id.
9

Robert G. Morris, 48 ECAB 238 (1996).

10

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

11

Id.

12

Lois E. Culver (Clair L. Culver), 53 ECAB 412 (2002).

3

describe the accepted employment incident. Dr. Wagner did not provide his medical reasoning as
to how and why the accepted insect bite would result in the claimed left thumb abscess. Medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of
diminished probative value on the issue of causal relationship.13
In order to establish causal relationship, a physician must provide an opinion that the injury
or condition for which compensation is claimed is causally related to federal employment and such
relationship must be supported with affirmative evidence, explained by medical rationale, and be
based upon a complete and accurate medical and factual background of the claimant.14 Appellant
was provided an opportunity to submit evidence to establish how the claimed abscess occurred.
By development letter dated September 19, 2017, OWCP requested that appellant obtain an
opinion from his attending physician with medical rationale addressing causal relationship.
Appellant has not submitted a medical report sufficient to show that the diagnosed left thumb
abscess was causally related to the accepted July 3, 2017 employment incident, and thus did not
meet his burden of proof.15
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a left thumb
abscess causally related to an accepted July 3, 2017 employment incident.

13

See S.E., Docket No. 08-2214 (issued May 6, 2009); Conard Hightower, 54 ECAB 796 (2003).

14

See J.W., Docket No. 17-0870 (issued July 12, 2017).

15

K.B., supra note 8.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated October 23, 2017 is affirmed.
Issued: August 16, 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
__________________________________________
G.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Monsey, NY, Employer
__________________________________________

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

Docket No. 14-1847
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 August 20, 2014 appellant filed a timely appeal from an April 11 and May 14, 2014
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.
ISSUES
The issues are: (1) whether OWCP properly determined appellant forfeited her
compensation from December 13, 2010 to March 11, 2013; (2) whether OWCP properly found
that an overpayment of $4,950.68 was created; and (3) whether OWCP properly found appellant
at fault in creating the overpayment and therefore not entitled to waiver.
FACTUAL HISTORY
On May 11, 1998 appellant, then a 46-year-old mail processor, filed a claim for an
occupational disease or illness (Form CA-2) alleging that she sustained a mood disorder and
1

5 U.S.C. § 8101 et seq.

sleep deprivation as a result of her work shift hours commencing at 1:00 a.m. OWCP accepted
the claim on January 25, 1999 for sleep disturbances and mood disorder secondary to sleep
deprivation. On August 4, 1999 it issued a wage-earning capacity determination, finding that
appellant’s actual earnings at the employing establishment since March 20, 1999 represented her
wage-earning capacity. Appellant continued to receive compensation based on wage-earning
capacity.2
OWCP sent appellant EN-1032 forms that requested information, inter alia, regarding
employment activity. The form covers a 15-month period and specifically asks the recipient
whether she worked for any employing establishment, whether she was “self-employed or
involved in any business enterprise” in the last 15 months. In an EN-1032 form signed on
March 13, 2012, appellant responded “no” with respect to any employment or involvement in a
business enterprise. She also responded “no” regarding employment activity in an EN-1032
form dated March 11, 2013.
On March 31, 2014 OWCP received a March 24, 2014 report from the employing
establishment Office of Inspector General (OIG) regarding appellant’s involvement in internet
sales. According to the report, appellant was engaged in selling items on eBay with a registered
PayPal account and eBay profile. The report includes a document listing eBay sales to
appellant’s account, indicating that, during the period December 23, 2011 to April 23, 2012, she
sold 71 items on eBay.
By decision dated April 11, 2014, OWCP found that appellant had forfeited her
compensation from December 13, 2010 to March 11, 2013. It found that she had earnings that
were knowingly omitted from the EN-1032 forms signed March 13, 2012 and March 11, 2013.
In a preliminary determination dated April 11, 2014, OWCP found that an overpayment
of $4,950.68 was created. It indicated that this was the compensation paid from the current
claim during the period December 13, 2010 to March 11, 2013.3 In addition, OWCP made a
preliminary determination that appellant was at fault because she made an incorrect statement as
to a material fact that she knew or should have known was incorrect.
On April 25, 2014 appellant submitted a statement from Allan Pisano, who stated that the
eBay auctions belonged to him. Mr. Pisano acknowledged that payments were received into her
PayPal account and transferred to her bank account, but this was done because at that time he did
not have eBay, PayPal or bank accounts. He asserted that appellant was just helping a friend and
did not make any money.
By decision dated May 14, 2014, OWCP finalized its determination of a $4,950.68
overpayment of compensation. It found that appellant was required to report her business
activity regarding her eBay account, even if it were for a friend. In addition, OWCP denied
waiver of the overpayment, finding that she was at fault in creating the overpayment.
2

Appellant filed a traumatic injury claim for injuries on February 12, 2003. This claim also involved the
forfeiture issue, as well as separate decisions as to overpayments, fault, and recovery. Those decisions are addressed
pursuant to the appeal docketed as No. 14-1848.
3

OWCP indicated that appellant’s net and gross compensation was $35.14 from December 13 to 18, 2010,
$4,903.04 from December 19, 2010 to March 9, 2013, and $12.50 from March 10 and 11, 2013.

2

LEGAL PRECEDENT -- ISSUE 1
5 U.S.C. § 8106(b) provides in pertinent part:
“The Secretary of Labor may require a partially disabled employee to report his
earnings from employment or self-employment, by affidavit or otherwise, in the
manner and at times the Secretary specifies…. An employee who -(1) fails to make an affidavit or report when required; or
(2) 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.”
ANALYSIS -- ISSUE 1
In the present case, OWCP found that appellant failed to disclose earnings on EN-1032
forms signed March 13, 2012 and March 11, 2013. On these forms appellant stated that she was
not self-employed or involved in a business enterprise. The period covered by each form is 15
months prior to the signature date.
The OIG report dated March 24, 2014 clearly documents that appellant had an eBay
account and under this account conducted numerous sales of items on eBay. For the period
December 23, 2011 through April 23, 2012, the report documented 71 sales transactions. In
S.R.,4 a similar eBay case, the claimant had an eBay account and the record documented sales to
the account. However, the claimant alleged that eBay sales were just a hobby. The Board found
that the claimant should have reported the earnings on the EN-1032 forms.
Appellant does not contest that the sales were made. She submitted a brief statement
from an individual stating that the sales transactions were actually his items and appellant’s
accounts were used because he did not have such accounts. This statement establishes that
appellant did have earnings as it acknowledges that payments were sent to appellant’s PayPal
account and then transferred to her bank account. The EN-1032 form clearly explains that any
involvement in a business enterprise must be reported. Appellant should have reported any eBay
business activity on the EN-1032 forms signed March 13, 2012 and March 11, 2013. The
documented sales activity occurred during the 15-month period covered by each EN-1032 form.
The Board finds that the evidence or record establishes that appellant omitted earnings on these
forms.
The next question is whether the omission of the earnings was “knowingly” made. The
term “knowingly” is defined in the regulations governing administration of claims filed under
FECA as “[w]ith knowledge, consciously, willfully, or intentionally.”5 In the case of C.R.,6 the
claimant sold several paintings from his home for $600.00. He had however called OWCP,
4

Docket No. 07-618 (issued July 10, 2007).

5

20 C.F.R. § 10.5(n).

6

Docket No. 09-720 (issued October 15, 2009).

3

reported the sale, but had been told that it would not affect his benefits. The Board reversed the
finding of knowing omission of earnings as appellant had established that he notified OWCP of
his earnings. However, in the eBay case S.R.,7 the Board noted that EN-1032 forms provide
clear language regarding the reporting requirement. In addition, the certification clauses on the
form clearly state that a claimant is advised that any fraudulent concealment or failure to report
income may result in both forfeiture of the right to compensation and criminal prosecution. The
evidence in this case, which documents multiple sales transactions to appellant’s accounts,
supports a finding that she knowingly omitted earnings. OWCP may find that an omission was
knowingly made, without an admission of knowledge by her, if the circumstances of the case are
sufficient to establish that she knew that she should have reported the employment activity and
earnings.8 The Board finds that appellant knowingly omitted earnings on EN-1032 forms dated
March 13, 2012 and March 11, 2013. Appellant therefore forfeits her compensation for the 15month periods covered by the forms, from December 13, 2010 to March 11, 2013.
On appeal, appellant reiterates her contention that she was just helping a friend and the
sales were made on behalf of Mr. Pisano. For the reasons noted above, she was required to
report the business activity. Appellant’s failure to report the activity on the EN-1032 forms
constitutes a knowing omission of earnings.
LEGAL PRECEDENT -- ISSUE 2
Under 5 U.S.C. 1806(b), “compensation forfeited under this subsection, if already paid,
shall be recovered … under section 8129 of this title, unless recovery is waived under that
section.”9
Section 10.529 of OWCP’s implementing regulations provide as follows:
“(a) If an employee knowingly omits or understate any earnings or work activity
in making a report, he or she shall forfeit the right to compensation with respect to
any period for which the report was required. A false or evasive statement,
omission, concealment or misrepresentation with respect to employment activity
or earnings in a report may also subject an employee to criminal prosecution.
“(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 [recovery of overpayments] and other relevant statues.10“
ANALYSIS -- ISSUE 2
As noted above, appellant has forfeited her right to compensation for the period
December 13, 2010 to March 11, 2013. OWCP may recover the compensation paid under the
7

Supra note 3.

8

See Terryl A. Geer, 51 ECAB 168, 171-72 (1999).

9

5 U.S.C. § 8106(b).

10

20 C.F.R. § 10.529.

4

current claim for the period in question.11 The evidence of record shows that appellant had
received compensation under the current claim in the amount of $4,950.68 during this period.
OWCP found that the overpayment was $4,950.68, and there is no contrary evidence. The Board
finds that an overpayment of $4,950.68 was created in this case.
LEGAL PRECEDENT -- ISSUE 3
5 U.S.C. 8129(b) provides: “Adjustment or recovery by the United States may not be
made when incorrect payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of [FECA] or would be against equity and good
conscience.”12 A claimant who is at fault in creating the overpayment is not entitled to waiver.13
On the issue of fault, 20 C.F.R. § 10.433 provides that an individual will be found at fault if he or
she has done any of the following: “(1) Made an incorrect statement as to a material fact which
he or she knew or should have known to be incorrect; (2) Failed to provide information which he
or she knew or should have known to be material; or (3) Accepted a payment which he or she
knew or should have known was incorrect. (This provision applies only to the overpaid
individual.)”
ANALYSIS -- ISSUE 3
The finding of fault in this case was based on 20 C.F.R. § 10.433(a)(1), for making an
incorrect statement regarding a material fact that appellant knew or should have known was
incorrect. The incorrect statement in this case is answering “no” to the question as to selfemployment or involvement in a business enterprise.
As the Board explained in L.M.,14 by signing the EN-1032 forms, appellant is deemed to
have acknowledged her duty to fill out the forms properly, including the duty to correctly report
self-employment income. Her understatement or omission of earnings is an incorrect statement
as to a material fact.15 Based on the forfeiture discussion above, it is established that appellant
knew or should have known that the statement she had no self-employment or involvement in a
business enterprise was incorrect in this case. The Board accordingly finds that she is properly
found to be at fault under 20 C.F.R. § 10.433(a)(1). Since appellant is at fault in creating the
overpayment, she is not entitled to waiver.
On appeal, appellant asserts that she is not at fault as she answered truthfully on the EN1032 forms. The evidence of record establishes however that appellant made an incorrect
statement as to a material fact and is properly found to be at fault in creating the overpayment in
this case.
11

Appellant also received compensation pursuant to the traumatic injury claim, which will be addressed under
Docket No. 14-1848.
12

5 U.S.C. § 8129(b).

13

See T.O., Docket No. 12-426 (issued July 23, 2012).

14

Docket No. 12-405 (issued October 1, 2012).

15

Id.

5

CONCLUSION
The Board finds that OWCP properly found that appellant forfeited her compensation
from December 13, 2010 to March 11, 2013. The Board further finds that OWCP properly
found that an overpayment of $4,950.68 was created, and waiver of the overpayment was
properly denied.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 14 and April 11, 2014 are 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


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDERS PROTECTION,
Chula Vista, CA, Employer
__________________________________________

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

Docket No. 13-957
Issued: August 7, 2013

Case Submitted on the Record

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

JURISDICTION
On March 13, 2013 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs (OWCP) dated February 5, 2013. 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 sustained a blood clot, stroke and loss of sight in his right
eye in the performance of duty on July 16, 2012.
FACTUAL HISTORY
Appellant, a 59-year-old engineering equipment operator, filed a Form CA-2 claim for
benefits on August 9, 2012, alleging that he sustained a blood clot, stroke and loss of vision in
1

5 U.S.C. § 8101 et seq.

his right eye on July 16, 2012 because the stress of driving under hazardous road conditions
while hauling heavy equipment caused his blood pressure to rise.2
In a September 24, 2012 report, Dr. Henry A. Ferreyra, a Board-certified
ophthalmologist, opined that appellant had a central retinal artery occlusion in his right eye on
July 17, 2012 which was most likely related to carotid atherosclerosis, with additional systemic
risk factors of hypertension and left ventricular hypertrophy, and was not a direct result of workrelated stress.
A July 17, 2012 hospital report, received by OWCP on October 1, 2012, indicated that
appellant was admitted to the emergency room on July 17, 2012 with a cherry spot in his eye and
an ischemic retina. He was diagnosed with central retinal artery occlusion in his right eye.
OWCP also received hospital records from August 2012 which indicated that he received
treatment and testing, including a diagnostic cerebral angiogram, for his central retinal artery
occlusion.
Appellant submitted numerous medical, diagnostic and hospital reports from 2006.
On August 29, 2012 OWCP advised appellant that it required additional factual and
medical evidence to determine whether he was eligible for compensation benefits. It asked him
to submit a comprehensive medical report from his treating physician describing his symptoms
and the medical reasons for his condition, an opinion as to whether his claimed condition was
causally related to his federal employment and a diagnosis of his claimed condition. OWCP
requested that appellant submit the additional evidence within 30 days.
By decision dated February 5, 2013, OWCP denied appellant’s claim, finding that he failed
to submit sufficient medical evidence in support of his claim that he sustained a condition in the
performance of duty.
LEGAL PRECEDENT
An employee seeking benefits under the FECA3 has the burden of establishing that the
essential elements of his or her claim including the fact that the individual is an “employee of the
United States” within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as alleged,
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.4 These are the essential elements of each and every

2

The Board notes that OWCP adjudicated this claim as one based on traumatic injury. Appellant filed a Form
CA-2 for occupational disease but alleged that his stress, blood clot, stroke and loss of vision in his right eye
occurred as a result of duties performed on July 16, 2012, not a period of days. 20 C.F.R. § 10.5(q).
3

5 U.S.C. §§ 8101-8193.

4

Joe Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

2

compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.6 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.7 The medical evidence required
to establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.8
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.9
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor is
the belief that his condition was caused, precipitated or aggravated by his employment sufficient
to establish causal relationship.10 Causal relationship must be established by rationalized
medical opinion evidence and appellant failed to submit such evidence.
ANALYSIS
OWCP accepted that appellant experienced rising blood pressure, blood clot, stroke and
loss of vision in his right eye while hauling heavy equipment on July 16, 2012 under hazardous
road conditions. The question of whether an employment incident caused a personal injury can
only be established by probative medical evidence.11 Appellant has not submitted rationalized,
probative medical evidence to establish that the July 16, 2012 employment factors would have
been competent to cause the claimed injury.

5

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

6

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

7

Id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(a)(14).

8

Id.

9

See Joe T. Williams, 44 ECAB 518, 521 (1993).

10

Id.

11

Carlone, supra note 6.

3

The only report bearing on causal relationship is that of Dr. Ferreyra, dated
September 24, 2012. Dr. Ferreyra advised that appellant experienced a central retinal artery
occlusion in his right eye on July 17, 2012. He stated that this event was most likely related to
carotid atherosclerosis, with additional systemic risk factors of hypertension and left ventricular
hypertrophy. Dr. Ferreyra opined, however, that this was not the direct result of work-related
stress. Thus, this report did not relate any diagnoses to the July 16, 2012 incident at work. The
weight of medical opinion is determined by the opportunity for and thoroughness of
examination, the accuracy and completeness of physician’s knowledge of the facts of the case,
the medical history provided, the care of analysis manifested and the medical rationale expressed
in support of stated conclusions.12 Although Dr. Ferreyra presented a diagnosis of appellant’s
condition, he did not present an opinion that this condition was causally related to the July 16,
2012 work incident. None of the diagnostic test results and hospital treatment notes that
appellant submitted contained an opinion pertaining to causal relationship. The medical reports
of record do not explain how, medically, appellant would have sustained a central retinal artery
occlusion in his right eye caused or aggravated by the stressful driving conditions of
July 16, 2012.
OWCP advised appellant of the evidence required to establish his claim; however,
appellant failed to submit such evidence. Appellant did not provide a medical opinion which
described or explained the medical process through which the July 16, 2012 work factors would
have caused the claimed injury. Accordingly, he did not establish that he sustained an injury in
the performance of duty. OWCP properly denied appellant’s claim for compensation.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to establish that he sustained an injury in the
performance of duty on July 16, 2012.

12

See Anna C. Leanza, 48 ECAB 115 (1996).

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ORDER
IT IS HEREBY ORDERED THAT the February 5, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 7, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., 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. 19-0476
Issued: September 24, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On December 21, 2018 appellant filed a timely appeal from a June 28, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP).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 this case.3

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from June 28, 2018, the date of OWCP’s last merit decision, was
Tuesday, December 25, 2018. As this fell on a federal holiday, appellant had until the next business day, Wednesday,
December 26, 2018 to file the appeal. Since using December 27, 2018, the date the appeal was received by the Clerk
of the Appellate Boards, would result in the loss of appeal rights, the date of the postmark is considered the date of
filing. The date of the U.S. Postal Service postmark is December 21, 2018, rendering the appeal timely filed. See 20
C.F.R. § 501.3(f)(1).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the June 28, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board

ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective May 31, 2017, as she no longer
had residuals or disability causally related to her accepted March 16, 2016 employment injury; and
(2) whether appellant has met her burden of proof to establish continuing disability or residuals on
or after May 31, 2017 due to the accepted March 31, 2017 employment injury.
FACTUAL HISTORY
On March 24, 2016 appellant, then a 42-year-old painter leader, filed a traumatic injury
claim (Form CA-1) alleging that on March 16, 2016 she injured her right forearm while in the
performance of duty.4 On April 27, 2016 OWCP accepted her claim for right forearm strains. It
paid her continuation of pay, followed by wage-loss compensation for temporary total disability.
Appellant briefly resumed work in November 2016, but stopped work again.
On December 6, 2016 appellant underwent OWCP-authorized surgery to excise a mass
(lipoma) from her right forearm, performed by Dr. Arthur W. Wardell, a Board-certified
orthopedic surgeon. Following appellant’s surgery, OWCP paid her wage-loss compensation on
the supplemental rolls.
On March 3, 2017 OWCP referred appellant to Dr. James Schwartz, a Board-certified
orthopedic surgeon, for a second opinion examination to determine her disability status and ability
to return to work. It provided Dr. Schwartz with a statement of accepted facts (SOAF) dated
February 24, 2017, which noted that her claim had been accepted for strains of “both forearms,”
that she had a mass excised from her right forearm followed by physical therapy, and that she had
returned to work on November 22, 2016. In a report dated March 18, 2017, Dr. Schwartz
concluded that there were no diagnoses from appellant’s accepted March 16, 2016 employment
injury and that her physical examination was entirely non-physiologic. He found that appellant’s
employment injury had resolved without residuals and that she, therefore, had no continuing
disability. Dr. Schwartz indicated that appellant required no further medical treatment and she
could resume full-time work without restrictions.
By decision dated May 31, 2017, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective that date, finding that appellant’s employment injury had resolved
without residuals or continuing disability.5 It based the decision on the March 18, 2017 opinion
of Dr. Schwartz.
Following the May 31, 2017 termination decision, OWCP received additional medical
evidence including June 2017 physical therapy treatment records and a June 8, 2017 attending
physician’s report (Form CA-20) from Dr. Wardell, who diagnosed right forearm flexor pronator
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for
the first time on appeal. Id.
4

Appellant attributed her injury to lifting, carrying, and loading/unloading nuclear vacuum equipment.

5

OWCP had provided appellant 30-days advanced notice of its proposed termination of FECA benefits.

2

tear and right elbow median neuropathy. Dr. Wardell advised that appellant was able to resume
her regular full-duty work.
Effective June 9, 2017, appellant resumed full-time, full-duty work without restrictions.
On May 31, 2018 appellant timely requested reconsideration of OWCP’s May 31, 2017
termination decision. With her request, she submitted additional reports from Dr. Wardell dated
August 8, September 11, and October 9, 2017. The reports referenced a June 22, 2017 cervical
injury under OWCP File No. xxxxxx981, as well as appellant’s March 16, 2016 employment
injury. Appellant also provided documents relevant to File No. xxxxxx981, including an April 11,
2018 decision accepting the claim for temporary aggravation of cervical radiculopathy.
In an accompanying May 30, 2018 statement, appellant requested that OWCP
administratively combine the current case record, File No. xxxxxx322, with her traumatic cervical
injury claim under File No. xxxxxx981, asserting that the later injury was a recurrence of the
present claim.
By decision dated June 28, 2018, OWCP denied modification of its May 31, 2017
termination decision. It explained that it had reviewed appellant’s May 30, 2018 statement, but
found that Dr. Swartz’ second opinion carried the weight of the medical evidence. OWCP noted
that it “received no further medical evidence in support of the case.”
LEGAL PRECEDENT -- ISSUE 1
According to FECA,6 once OWCP accepts a claim and pays compensation, it has the
burden of proof to justify termination or modification of an employee’s benefits.7 OWCP may not
terminate compensation without establishing that the disability had ceased or that it was no longer
related to the employment.8 Its burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.9 The right to medical
benefits for an accepted condition is not limited to the period of entitlement for disability
compensation.10 To terminate authorization for medical treatment, OWCP must establish that
appellant no longer has residuals of an employment-related condition, which require further
medical treatment.11

6

Supra note 2.

7

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

8
A.G., Docket No. 18-0749 (issued November 7, 2018); see I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB
734 (2003).
9

R.R., Docket No. 19-0173 (issued May 2, 2019); Del K. Rykert, 40 ECAB 284 (1988).

10

L.W., Docket No. 18-1372 (issued February 27, 2019); Kathryn E. Demarsh, 56 ECAB 677 (2005).

11

R.P., Docket No. 17-1133 (issued January 18, 2018); A.P., Docket No. 08-1822 (issued August 5, 2009).

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ANALYSIS -- ISSUE 1
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective May 31, 2017, as she no longer had residuals or
disability causally related to her accepted employment injury.
OWCP accepted appellant’s claim for right forearm strains. Following a December 6, 2016
OWCP-authorized surgical procedure on March 3, 2017, OWCP referred appellant to
Dr. Schwartz for a second opinion examination to determine her disability status and ability to
return to work. In a report dated March 18, 2017, Dr. Schwartz concluded that there were no
diagnoses for appellant’s accepted employment injury of March 16, 2016 and that her physical
examination was entirely non-physiologic. He opined that appellant’s employment injury had
resolved without residuals and that she, therefore, had no continuing disability. Dr. Schwartz
found that appellant required no further medical treatment and she could resume full-time work
without restrictions. He accurately summarized the relevant medical evidence, provided detailed
findings on examination, and reached conclusions about appellant’s condition which comported
with his findings.
The Board thus finds that Dr. Schwartz’ opinion is sufficiently well rationalized and based
on a proper factual and medical history such that his opinion is entitled to the weight of the medical
evidence, establishing that appellant had no ongoing employment-related residuals or disability.12
LEGAL PRECEDENT -- ISSUE 2
Once OWCP properly terminates a claimant’s compensation benefits, the burden shifts to
appellant to establish continuing disability or residuals after that date, causally related to the
accepted injury.13 To establish causal relationship between the condition as well as any attendant
disability claimed and the employment injury, an employee must submit rationalized medical
evidence based on a complete medical and factual background, supporting such causal
relationship.14
ANALYSIS -- ISSUE 2
The Board finds that the case is not in posture for decision.
OWCP failed to consider evidence it had received following its May 31, 2017 decision,
which appellant had submitted in support of her request for reconsideration. As Board decisions
are final as to the subject matter appealed, it is crucial that all evidence relevant to the subject
matter of the claim which was properly submitted to OWCP prior to the time of issuance of its
final decision be reviewed and addressed by OWCP.15 As set forth above, OWCP noted in its
12

K.S., Docket No. 19-0082 (issued July 29, 2019); see also R.R., supra note 9.

13

See S.M., Docket No. 18-0673 (issued January 25, 2019); J.R., Docket No. 17-1352 (issued August 13, 2018).

14

Id.

15

See L.T., Docket No. 19-0145 (issued June 3, 2019); William A. Couch, 41 ECAB 548 (1990).

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June 28, 2018 decision that it had “received no further medical evidence in support of the case”
when, in fact, it had received several additional reports from Dr. Wardell in support of appellant’s
May 31, 2018 request for reconsideration.
Consequently, the Board must set aside the June 28, 2018 decision as OWCP did not fully
consider the evidence appellant submitted with her May 31, 2018 request for reconsideration.
CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective May 31, 2017, as she no longer had residuals or
disability causally related to her accepted employment injury. The Board further finds that the
case is not in posture for decision with regard to whether appellant has met her burden of proof to
establish continuing employment-related disability or residuals due to the accepted employment
injury.
ORDER
IT IS HEREBY ORDERED THAT the June 28, 2018 decision of the Office of Workers’
Compensation Programs is affirmed in part and set aside in part and the case is remanded for
further proceedings consistent with this decision of the Board.
Issued: September 24, 2020
Washington, DC

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

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

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

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

Docket No. 20-1016
Issued: December 8, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On April 11, 2020 appellant filed a timely appeal from an April 6, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the April 6, 2020 decision, OWCP received additional evidence.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish more than one
percent permanent impairment of each lower extremity for which she previously received a
schedule award.
FACTUAL HISTORY
On September 1, 2016 appellant, then a 54-year-old city letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she sustained an injury as a result of factors of her federal
employment. She noted that she first became aware of her condition on January 22, 2015 and
realized its relationship to her federal employment on January 30, 2015. In undated narrative
statements, appellant claimed that she developed a bilateral foot condition due to her repetitive
work duties. OWCP accepted the claim for plantar fascial fibromatosis.
On April 13, 2018 appellant underwent authorized surgical excision of her left foot plantar
fascia ﬁbromatoses. On April 4, 2019 she underwent authorized surgical excision of her right foot
plantar fibroma soft mass.
OWCP subsequently received a December 11, 2019 medical report by Dr. Jerome C. Hall,
a Board-certified orthopedic surgeon. Dr. Hall noted a history of the employment injury and
appellant’s medical treatment. On physical examination of both feet he reported well-healed
incisions over the plantar fascia extending from the mid foot into the forefoot. While the incisions
were well healed on the left foot, there were several nodules consistent with fibromatosis. There
was full range of motion of the ankles and subtalar joints, bilaterally. Palpation over the plantar
aspect of the foot over incisions elicited significant pain and tenderness. There was pain and
tenderness with compression of the heels, bilaterally, consistent with plantar fasciitis. A
previously performed magnetic resonance imaging scan of the left foot showed what appeared to
be plantar ﬁbromatoses. Dr. Hall provided impressions of plantar fasciitis of the bilateral feet and
bilateral plantar ﬁbromatosis, status postsurgical treatment and excision of plantar ﬁbromatoses in
the bilateral feet. He referred to the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (A.M.A., Guides)3 and utilized the diagnosis-based
impairment (DBI) rating method to find that, under Table 16-2 (Foot and Ankle Regional Grid),
page 501, the class of diagnosis (CDX) for plantar fasciitis of each foot resulted in a class 1, grade
C impairment with a default value of one. Dr. Hall found no grade modifier adjustments from the
default value of one percent, which resulted in one percent permanent impairment of each lower
extremity. He determined that appellant reached maximum medical improvement (MMI) as of the
date of his impairment evaluation.
On February 7, 2020 appellant filed a claim for a schedule award (Form CA-7).
In support of her claim, appellant submitted an October 30, 2019 industrial work status
report from Dr. Jennifer G. Shih, a diagnostic radiologist. Dr. Shih diagnosed bilateral plantar
fasciitis and bilateral metatarsalgia. She released appellant to return to full-capacity work as of
3

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

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the date of her report. Dr. Shih concluded that appellant was permanent and stationary with future
medical care.
On February 21, 2020 OWCP routed Dr. Hall’s December 11, 2019 report, a statement of
accepted facts (SOAF), and the case record to Dr. Michael M. Katz, a Board-certified orthopedic
surgeon serving as a district medical adviser (DMA), for review and a determination of permanent
impairment in accordance with the sixth edition of the A.M.A., Guides and the date of MMI.
In a February 28, 2020 letter, Dr. Katz reviewed the SOAF and the medical record,
including Dr. Hall’s report. He concurred with Dr. Hall’s finding of one percent permanent
impairment of each lower extremity. The DMA also agreed with the diagnosis of plantar
fasciitis/fibromatosis under Table 16-2, 501 of the sixth edition of the A.M.A., Guides, for both
feet. Regarding the right lower extremity, he assigned a grade modifier for functional history
(GMFH) of 1 and a grade modifier for physical examination (GMPE) of 1. The DMA found that
a grade modifier for clinical studies (GMCS) was not applicable. He applied the net adjustment
formula (GMFH - CDX) + (GMPE - CDX) = (1 - 1) + (1 – 1) = 0, which resulted in a class 1,
grade C, one percent permanent impairment of the right lower extremity. Regarding the left lower
extremity, the DMA concluded the same grade modifier calculations as the right lower extremity,
which resulted in class 1 with a net adjustment of 0, which yielded a class 1, grade C, one percent
permanent impairment. He determined that appellant reached MMI as of December 11, 2019,
which corresponded with the date of Dr. Hall’s impairment evaluation.
OWCP, by decision dated April 6, 2020, granted appellant a schedule award for one
percent permanent impairment of each lower extremity. The period of the award ran for 5.76
weeks December 11, 2019 through January 20, 2020 and was based on the opinions of Dr. Hall
and the DMA.
LEGAL PRECEDENT
The schedule award provisions 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 necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants.
Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses.6 As of May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2009).7 The Board has approved the use

4

Supra note 1 at § 8107.

5

20 C.F.R. § 10.404.

6

Id. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

7
See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017); see also Chapter 3.700, Exhibit 1 (January 2010).

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by OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes.8
The sixth edition of the A.M.A., Guides provides a DBI method of evaluation utilizing the
World Health Organization’s International Classification of Functioning, Disability and Health
(ICF).9 In determining impairment for the lower extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the lower extremity
to be rated. With respect to the foot/ankle, reference is made to Table 16-2 (Foot and Ankle
Regional Grid) of the A.M.A., Guides.10 After the CDX is determined from the Foot and Ankle
Regional Grid (including identification of a default grade value), the net adjustment formula is
applied using the GMFH, GMPE, and GMCS. The net adjustment formula is (GMFH - CDX) +
(GMPE - CDX) + (GMCS - CDX).11 Under Chapter 2.3, evaluators are directed to provide reasons
for their impairment rating choices, including choices of diagnoses from regional grids and
calculations of modifier scores.12
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of
impairment specified.13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish more than one
percent permanent impairment of each lower extremity, for which she previously received a
schedule award.
Appellant submitted a December 11, 2019 report from Dr. Hall to support her claim for a
schedule award. Dr. Hall reviewed her history of employment injury and conducted an
examination. He provided impressions of plantar fasciitis of the bilateral feet and bilateral plantar
ﬁbromatosis, status postsurgical treatment and excision of plantar ﬁbromatoses in the bilateral feet.
Utilizing the DBI methodology under Table 16-2, page 501 of the sixth edition of the A.M.A.,
Guides, Dr. Hall found that appellant had a class 1, grade C impairment for plantar fasciitis of each
foot. He found no grade modifier adjustments from the default value of one percent, which resulted
in one percent permanent impairment of each lower extremity.

8

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

9

A.M.A., Guides, page 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF):
A Contemporary Model of Disablement.
10

See A.M.A., Guides 501-08, Table 16-2.

11

Id. at 515-22.

12

Id. at 23-28.

13
See supra note 7 at Chapter 2.808.6(f) (March 2017). See also P.W., Docket No. 19-1493 (issued August 12,
2020); Frantz Ghassan, 57 ECAB 349 (2006).

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OWCP properly referred the evidence of record to a DMA, Dr. Katz. In his February 28,
2020 report, the DMA concurred with Dr. Hall’s finding that appellant had one percent permanent
impairment of each lower extremity pursuant to the sixth edition of the A.M.A., Guides.
The Board finds that OWCP properly determined that the clinical findings and reports of
Dr. Hall and the DMA constituted the weight of the medical evidence.14 There is no probative
medical evidence of record demonstrating greater impairment than that previously awarded.15
Therefore, appellant has not met her burden of proof to establish an increased schedule award.
Appellant may request a schedule award or increased schedule award at any time 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 has not met her burden of proof to establish more than one
percent permanent impairment of each lower extremity, for which she previously received a
schedule award.
ORDER
IT IS HEREBY ORDERED THAT the April 6, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 8, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

14

K.M., Docket No. 19-1526 (issued January 22, 2020); Y.S., Docket No. 19-0218 (issued May 15, 2020).

15

See K.M., id.; J.M., Docket No. 18-1334 (issued March 7, 2019).

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