United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.L., Appellant
and
U.S. POSTAL SERVICE, DES PERES BRANCH
POST OFFICE, St. Louis, MO, Employer
__________________________________________

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Appearances:
Michael David, for the appellant
Office of Solicitor, for the Director

Docket No. 12-587
Issued: October 11, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 23, 2012 appellant, through his representative, filed a timely appeal of a
September 20, 2011 decision of the Office of Workers’ Compensation Programs (OWCP)
denying further merit review. Because over 180 days elapsed between the most recent merit
decision of February 22, 2011, to the filing of this appeal, the Board lacks jurisdiction to review
the merits of appellant’s case, pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the merits pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant’s representative stated that the employing establishment rescinded
appellant’s job after 13 years. He stated that work was still available, but management refused to
allow appellant to perform his job duties.
1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On March 1, 1993 appellant, then a 43-year-old letter carrier, injured his head, back and
left leg when his delivery vehicle was rear ended. OWCP accepted his claim for low back strain
and left shin contusion. It entered appellant on the periodic rolls on February 8, 1994. Appellant
underwent a left L4-5 and L5-S1 lumbar microdiscectomy on May 16, 1994. He underwent a
second L4-5 microdiscectomy on February 15, 1995. Appellant received a third-party
settlement. On December 28, 1995 the employing establishment offered him a modified city
carrier position which he accepted on December 29, 1995. In a decision dated March 20, 1996,
OWCP determined that appellant’s actual earnings as a modified city carrier beginning
January 6, 1996 fairly and reasonably represented his wage-earning capacity.
On May 21, 2010 appellant filed a claim for compensation requesting wage-loss
compensation from May 14 to 21, 2010. He stated that he worked between two and four hours a
day. In a letter dated June 8, 2010, OWCP noted that appellant’s limited-duty assignment had
been withdrawn effective May 18, 2010 as part of the National Reassessment Process (NRP). It
noted that, as a formal loss of wage-earning capacity determination had been issued, he was
obliged to establish that a modification of that decision was appropriate in order to receive
compensation benefits. Appellant submitted a limited-duty position working two hours a day
which he accepted on May 18, 2010. He also submitted a report dated June 29, 2010 from
Dr. Charles Mannis, a Board-certified orthopedic surgeon, who diagnosed degenerative disc
disease in the lumbar spine and degenerative arthritis in the left knee. Dr. Mannis noted that
appellant had permanent work restrictions and completed a work capacity evaluation finding that
appellant could work four hours a day.
Appellant filed a notice of recurrence of disability on July 14, 2010 alleging that on
May 18, 2010 the employing establishment withdrew his limited-duty job offer and provided him
with a partial day job offer.
By decision dated August 12, 2010, OWCP denied his claim for compensation beginning
May 18, 2010.
Appellant requested an oral hearing before an OWCP hearing representative. In a letter
to OWCP dated October 6, 2010, the employing establishment stated that the position performed
by appellant since May 18, 2010 consisted of odd-lot duties raising the appearance that the loss
of wage-earning capacity determination was made in error and should be modified.
Appellant testified at the oral hearing on January 12, 2011. He stated that he was capable
of performing the position on which his loss of wage-earning capacity determination was made,
but that the position was withdrawn. Appellant also argued that Dr. Mannis had increased his
lifting restrictions due to his accepted employment injury.
By decision dated February 22, 2011, an OWCP hearing representative found that
appellant failed to establish that modification of the 1996 wage-earning capacity determination
was warranted.

2

Appellant requested reconsideration on August 9, 2011. He submitted a narrative
statement noting his injury on March 1, 1993 and his return to a rehabilitation job as well as the
duties entailed. Appellant stated that work was available at the employing establishment
performing his job functions, but that the employing establishment refused to allow him to work.
On November 24, 1997 the employing establishment had provided him with a modified city
carrier position tailored to meet his physical needs effective December 6, 1997. Appellant
accepted this position on December 3, 1997. The employing establishment offered him a
limited-duty city carrier position on May 18, 2010 working two hours a day which he accepted
on that date.
By decision dated September 20, 2011, OWCP declined to reopen appellant’s claim for
consideration of the merits on the grounds that he failed to submit any new or relevant evidence
or argument in support of his reconsideration request.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.2 Compensation for loss of wage-earning capacity is based upon loss of the capacity to
earn and not on actual wages lost.3 Compensation payments are based on the wage-earning
capacity determination, which remains undisturbed until properly modified.4
Modification of a standing wage-earning capacity determination is not warranted unless
there is a material change in the nature and extent of the injury-related condition, the employee
has been retrained or otherwise vocationally rehabilitated or the original determination was
erroneous.5 The burden of proof is on the party attempting to show a modification of the wageearning capacity determination.6
FECA Bulletin No. 09-05, however, outlines OWCP’s procedures when limited-duty
positions are withdrawn pursuant to NRP. If, as in the present case, a formal loss of wageearning capacity decision has been issued, OWCP must develop the evidence to determine
whether a modification of that decision is appropriate.7

2

5 U.S.C. § 8115(a); K.R., Docket No. 09-415 (issued February 24, 2010); Lee R. Sires, 23 ECAB 12, 14 (1971)
(the Board held that actual wages earned must be accepted as the measure of a wage-earning capacity in the absence
of evidence showing they do not fairly and reasonably represent the employee’s wage-earning capacity).
3

K.R., id.; Ernest Donelson, Sr., 35 ECAB 503, 505 (1984); Roy Matthew Lyon, 27 ECAB 186, 190 (1975).

4

See Sharon C. Clement, 55 ECAB 552, 557 (2004).

5

Sue A. Sedgwick, 45 ECAB 211, 215-16 (1993); Elmer Strong, 17 ECAB 226, 228 (1965).

6

Selden H. Swartz, 55 ECAB 272, 278 (2004).

7

FECA Bulletin No. 09-05 (issued August 18, 2009).

3

ANALYSIS
The issue is whether appellant met his burden of proof to establish that the March 20,
1996 loss of wage-earning capacity determination should be modified. After OWCP issued its
formal loss of wage-earning capacity decision, the employing establishment reassessed his rated
position under NRP, resulting in a withdrawal of limited duty and a claim for wage-loss
compensation beginning May 14, 2010. It analyzed the case under the customary criteria for
modifying a loss of wage-earning capacity determination, but did not acknowledge FECA
Bulletin No. 09-05 or fully follow the procedures outlined therein for claims, such as this, in
which limited-duty positions are withdrawn pursuant to NRP.
When a wage-earning capacity decision has been issued, FECA Bulletin No. 09-05
requires OWCP to develop the evidence to determine whether a modification of the decision is
appropriate. To this end, FECA Bulletin No. 09-05 asks OWCP to confirm that the file contain
documentary evidence supporting that the position was an actual bona fide position. It requires
OWCP to review whether a current medical report supports work-related disability and
establishes that the current need for limited duty or medical treatment is a result of injury-related
residuals and to further develop the evidence from both the claimant and the employing
establishment if the case lacks current medical evidence.8
FECA Bulletin No. 09-05 states that OWCP, in an effort to proactively manage these
types of cases, may undertake further nonmedical development, such as requiring that the
employing establishment address in writing whether the position on which the wage-earning
capacity determination was based was a bona fide position at the time of the rating and to direct
the employing establishment to review its files for contemporaneous evidence concerning the
position.9
The Board notes that, while appellant used the term reconsideration in his August 9, 2011
correspondence, he asserted that his wage-earning capacity determination was in error.
Appellant submitted a narrative statement alleging that work was available at the employing
establishment but was not provided a full-time position. He also provided documentation of the
light-duty positions offered him. This includes an October 6, 2010 letter from the employing
establishment to OWCP stating that the duties to which appellant was assigned were odd-lot. The
Board finds that OWCP should have adjudicated the issue of modification of loss of wageearning capacity determination rather than treating appellant’s correspondence as a request for
reconsideration.10 The Board will therefore remand the case to OWCP for proper adjudication,
to be followed by an appropriate merit decision to preserve his appeal rights.

8

Id. at §§ I.A.1-2.

9

Id. at § I.A.3.

10

C.R., Docket No. 12-577 (issued July 26, 2012).

4

CONCLUSION
The Board finds that OWCP improperly adjudicated appellant’s request for
reconsideration. On remand, OWCP should properly evaluate his claim, as a request for
modification of his loss of wage-earning capacity and in accordance with FECA Bulletin No. 0905 and issue an appropriate merit decision.
ORDER
IT IS HEREBY ORDERED THAT the September 20, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further development consistent
with this decision of the Board.
Issued: October 11, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
U.S. POSTAL SERVICE, UNIVERSITY
STATION, Dallas, TX, Employer
__________________________________________

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

Docket No. 16-0443
Issued: May 3, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On January 11, 2016 appellant filed a timely appeal from an August 10, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly denied waiver of a $13,319.36 overpayment
of compensation; and (2) whether it properly found that it would recover the overpayment by
withholding $200.00 from appellant’s continuing compensation payments.
FACTUAL HISTORY
This case has previously been before the Board. In a decision dated April 13, 2015, the
Board affirmed in part and set aside in part a June 19, 2014 decision finding that appellant
1

5 U.S.C. § 8101 et seq.

received an overpayment of compensation for which she was at fault.2 The Board affirmed
OWCP’s finding that she received an overpayment of $13,319.36 when it electronically
transferred compensation owed to another claimant into her bank account. The Board
determined, however, that appellant was not at fault in creating the overpayment and remanded
the case for OWCP to consider whether she was entitled to waiver of recovery of the
overpayment based on current financial information. The facts and circumstances as set forth in
the prior decision are incorporated herein by reference.
On June 15, 2015 OWCP requested that appellant submit an overpayment recovery
questionnaire (Form OWCP-20) with supporting documentation so that it could evaluate whether
she was entitled to waiver of recovery of the overpayment. It did not provide a deadline for
submission of the information. OWCP indicated that it was enclosing a blank Form OWCP-20
with its letter.
In a decision dated August 10, 2015, OWCP denied waiver of the $13,319.36
overpayment of compensation. It found that appellant had not responded to its request for
current financial information. OWCP determined that it would recover the overpayment by
deducting $200.00 from her continuing compensation payments.
On appeal appellant contends that OWCP’s June 15, 2015 letter did not advise her that
she only had 30 days to submit the requested information. She asserts that repaying the
overpayment would cause severe financial hardship.
LEGAL PRECEDENT -- ISSUE 1
OWCP’s regulations provide that, before seeking to recover an overpayment or adjust
benefits, it will advise the individual in writing that the overpayment exists and the amount of the
overpayment.3 The written notification must also include a preliminary finding regarding
whether the individual was at fault in the creation of the overpayment.4 OWCP must inform the
individual of his or her right to challenge the fact or amount of the overpayment, the right to
contest the preliminary finding of fault in the creation of the overpayment, if applicable, and the
right to request a waiver of recovery of the overpayment.5 OWCP’s procedures provide that a
preliminary finding of overpayment must be provided within 30 days and must clearly identify
the reason that the overpayment occurred and the basis for any fault finding.6

2

Docket No. 14-1730 (issued April 13, 2015). OWCP accepted that on September 13, 2011 appellant, then a 50year-old city carrier, sprained her left ankle in the performance of duty. It paid her disability compensation
beginning October 29, 2011.
3

20 C.F.R. § 10.431(a).

4

Id. at § 10.431(b).

5

Id. at § 10.431(d).

6

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.4(a)(1) (May 2004).

2

OWCP’s procedures provide, “If the claimant is determined to be without fault, Form
CA-2202 must be released (along with an OWCP-20) within 30 days of the date the
overpayment is identified.”7 (Emphasis in the original.)
OWCP’s procedures further specify, “Form CA-2202 also informs the claimant of the
right to submit additional evidence and argument, if the claimant disagrees with the fact or
amount of the overpayment and if the claimant feels the overpayment should be waived.
Additional evidence and arguments must be submitted by the claimant within 30 days of the date
of the letter.”8
ANALYSIS -- ISSUE 1
On prior appeal, the Board set aside OWCP’s finding that appellant was at fault in the
creation of an overpayment of $13,319.36. The Board remanded the case for OWCP to consider
waiver of the overpayment after obtaining current financial information.
In a letter dated June 15, 2015, OWCP requested that appellant complete and return an
enclosed overpayment recovery questionnaire (Form CA-20) with supporting documentation so
that it could consider waiver of the overpayment. It, however, did not inform her that, in
accordance with its procedures, she must submit any evidence or argument in support of waiver
within 30 days.9 Consequently, as OWCP did not comply with its procedures, the case will be
remanded for OWCP to provide appellant with a Form OWCP-20 with notice of the 30-day time
limitation prior to determining whether she is entitled to waiver of recovery of the overpayment.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether OWCP
properly denied waiver of the overpayment.10

7

Id.

8

Id. at Chapter 6.200.4(a)(2) (May 2004).

9

Id.

10

In view of the Board’s determination regarding waiver of the overpayment, it is premature to address whether
OWCP properly determined that the overpayment should be repaid by withholding $200.00 per month from
continuing compensation.

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ORDER
IT IS HEREBY ORDERED THAT the August 10, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: May 3, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Holtsville, NY, Employer
__________________________________________

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

Docket No. 15-89
Issued: February 20, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 15, 2014 appellant, through counsel, timely appealed the September 24, 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 the claim.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on or about
October 25, 2013.
FACTUAL HISTORY
Appellant, a 58-year-old customer service representative, filed a claim (Form CA-2) for a
right hand injury that allegedly arose on or about October 25, 2013. She attributed her condition
1

5 U.S.C. §§ 8101-8193.

to working on a computer. Initially, appellant did not submit any medical evidence with her
November 7, 2013 claim.
In a November 27, 2013 development letter, OWCP requested a more detailed
description of the employment duties that appellant believed had caused her right hand/wrist
condition. It also advised her to submit appropriate medical evidence in support of her claim.
OWCP subsequently received November 20, 2013 treatment notes and an attending
physician’s report (Form CA-20) from Dr. P. Warwick Green, a Board-certified orthopedic
surgeon, who diagnosed sprain/strain of the right thumb and osteoarthritis of the hand.
Dr. Green reported a sudden onset of sharp pain in right thumb, with swelling at the base of the
thumb. This occurred while appellant was at work on October 25, 2013. X-rays of the right
hand showed mild osteoarthritis of the carpometacarpal (CMC) joint. Dr. Green noted that the
condition was employment related, and explained that appellant’s complaints represented an
exacerbation of preexisting conditions due to work. He advised that she could return to work,
but was unable to use her right hand. Dr. Green referred appellant for physical therapy. He also
submitted a duty status report (Form CA-17).
In a December 23, 2013 follow-up report, Dr. Green noted that appellant continued to
experience pain at the base of her right thumb. He diagnosed osteoarthrosis of the hand, and
advised her to continue physical therapy. Appellant returned on January 22, 2014 and reported
that her right thumb had responded to physical therapy. Dr. Green diagnosed CMC sprain/strain
and advised her to continue with physical therapy. He also noted that appellant had left thumb
complaints as a consequence of transferring activities to her left upper extremity following her
work injury.
In a February 4, 2014 decision, OWCP denied appellant’s claim because she failed to
establish fact of injury. Appellant did not submit a detailed description of her work-related
activities as requested by OWCP on November 27, 2013. OWCP also found the medical
evidence insufficient to establish an employment-related diagnosis.
Counsel timely requested reconsideration. In support of the request, he submitted
February 12 and April 23, 2014 reports from Dr. Sang H. Song, a Board-certified physiatrist.
Dr. Song examined appellant on February 12, 2014. He noted that she was employed in
customer service and had not missed any time from work. Appellant was right-handed and
complained of right hand pain and paresthesias from work-related activity, mostly typing and
using a computer mouse. She described the pain as sharp, tight, achy, stiff and stabbing.
Appellant also reported feeling burning and tingling sensations. She rated the severity as 8 out
of 10 at its worst. Appellant’s first three fingers of her right hand were most affected. The pain
extended up her right forearm, and her right hand felt weak. Appellant’s symptoms reportedly
worsened with sustained use of her hand, especially keyboarding. She reported difficulty
picking up small items, like paper clips. Appellant also reported having neck pain. She denied
any prior injury to her right hand. Dr. Song also noted that appellant recently consulted an
orthopedic surgeon, who opined that her symptoms were due to “arthritis.”

2

Dr. Song examined appellant and obtained electrodiagnostic studies of the neck and
upper extremities electromyogram (EMG) nerve conduction study (NCS). The test results
showed moderate bilateral carpal tunnel syndrome, right worse than left. Dr. Song also indicated
that the study showed no evidence of cervical radiculitis. His clinical assessment was carpal
tunnel syndrome and weakness.2 Dr. Song stated that, based on the appellant’s history and
physical examination, it was “probable that these injuries are causally related to the
above-mentioned accident.”
On April 23, 2014 Dr. Song provided additional information regarding the cause of
appellant’s right hand condition. He noted that she had been diagnosed with right carpal tunnel
syndrome, which was confirmed by EMG/NCS testing. Dr. Song further stated that it was his
medical opinion that this condition was causally related to appellant’s repetitive work activities,
including keyboarding (7 hours daily), operating a computer mouse (7 hours daily), stapling (4.5
hours daily), and grasping paper clips (4.5 hours daily).
In a June 18, 2014 decision, OWCP denied appellant’s request for reconsideration.
Although appellant submitted new medical reports from Dr. Song, it found this evidence
“irrelevant” absent a detailed statement from her describing the work-related activities she
believed contributed to her right hand condition. Consequently, OWCP declined to review the
merits of the claim.
On June 26, 2014 counsel again requested reconsideration. This time, he submitted a
June 23, 2014 statement from appellant regarding her employment duties. Appellant indicated
that she was a customer service worker whose duties consisted of reconciling taxpayers’
accounts via correspondence and/or telephone. During the course of an eight-hour workday, she
was responsible for processing tax returns, sending documents to central processing, and
corresponding with taxpayers via letters. Appellant was also responsible for stapling and/or
paper clipping documents. She performed this activity at least two hours a day, as needed.
Appellant also stated that she was responsible for documenting each telephone conversation with
a taxpayer. On any given day, she documented between 35 to 40 calls. Both paper and
telephone communications were documented via computer. Appellant worked a 40-hour week,
and each day she spent 7.2 hours keyboarding and using a mouse. Her disability affected the
timeliness and accuracy of her case documentation responsibilities.
By decision dated September 24, 2014, OWCP denied appellant’s claim because the
medical evidence failed to establish a causal relationship between her diagnosed right carpal
tunnel syndrome and her described duties as a customer service representative.
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,

2

Dr. Song’s treatment recommendation included physical therapy for the right wrist, nighttime splinting,
anti-inflammatory medication (Meloxicam), and vitamins (B6).

3

including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.3
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
and (3) medical evidence establishing that the diagnosed condition is causally related to the
identified employment factors.4
ANALYSIS
Appellant claimed to have injured her right hand on or about October 25, 2013. She
attributed this condition to her duties as a customer service representative, which she described
as involving more than seven hours of daily keyboarding and using a mouse. Additional duties
included stapling and/or paper clipping documents at least two hours a day, as needed.
When Dr. Green examined appellant on November 20, 2013, he diagnosed sprain/strain
of the right thumb and osteoarthritis of the hand. He noted that x-rays of the right hand showed
mild osteoarthritis of the CMC joint. Dr. Green indicated appellant’s condition was employment
related. He explained that her complaints represented a work-related exacerbation of preexisting
conditions. However, Dr. Green did not exhibit a familiarity with appellant’s specific duties as a
customer service representative. A physician’s opinion must be based on a complete factual and
medical background and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and appellant’s specific employment factors.5 In
follow-up treatment notes dated December 23, 2013 and January 22, 2014, Dr. Green diagnosed
right hand osteoarthrosis and CMC sprain/strain, but again failed to identify any specific
employment duties that either caused or contributed to appellant’s right hand condition.
Dr. Song examined appellant on February 12, 2014 and diagnosed carpal tunnel
syndrome. He was aware she had previously received a diagnosis of arthritis, but did not
otherwise comment on the validity of this diagnosis. Dr. Song also did not review any prior
x-rays or objective studies. However, his February 12, 2014 examination included EMG/NCS
testing, which revealed moderate bilateral carpal tunnel syndrome, right worse than left.
Dr. Song indicated that it was “probable” appellant’s “injuries” were causally related to “the
3

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is a
medical question, which generally requires rationalized medical opinion evidence to resolve the issue. See
Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on whether there is a causal relationship between
the diagnosed condition and the implicated employment factors must be based on a complete factual and medical
background. Victor J. Woodhams, 41 ECAB 345, 352 (1989). 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
factors. Id.
4

Victor J. Woodhams, id.

5

Id.

4

above-mentioned accident.” His assessment was not only speculative, but also there was no
mention of multiple “injuries” or a particular “accident” elsewhere in his report. In fact,
Dr. Song noted in his history of present illness that appellant denied any prior injury to her right
hand.
Dr. Song attempted to clarify his position in a self-described “[letter of causality]”
dated April 23, 2014. He first noted that appellant’s diagnosis of right carpal tunnel syndrome
was confirmed by objective testing. Dr. Song next stated that he believed this condition was
causally related to her repetitive work activities, including keyboarding (7 hours daily), operating
a computer mouse (7 hours daily), stapling (4.5 hours daily), and grasping paper clips (4.5 hours
daily). The Board notes that his representation of appellant’s daily keyboarding and mouse
usage is consistent with her June 23, 2014 statement. Dr. Song failed to provide an explanation
or rationale for his opinion on causal relationship. It is unclear from his various reports why he
believes appellant’s repetitive work activities contributed to her right carpal tunnel syndrome. It
is not enough to merely conclude that a condition is employment related. Moreover, Dr. Song
did not specifically comment on appellant’s prior diagnosis of arthritis. As previously indicated,
a physician’s opinion on causal relationship must be based on a complete factual and medical
background and must be supported by medical rationale.6
The Board finds that the reports of Dr. Green and Dr. Song are insufficient to establish
that appellant’s claimed right hand/wrist condition is employment related. Accordingly, OWCP
properly denied appellant’s occupational disease claim. Appellant may submit new evidence or
argument with a written request for reconsideration to OWCP within one year of this merit
decision.7
CONCLUSION
Appellant failed to establish that her right carpal tunnel syndrome is causally related to
her duties as a customer service representative.

6

Id.

7

5 U.S.C. § 8128(a); 20 C.F.R. §§ 10.605-10.607.

5

ORDER
IT IS HEREBY ORDERED THAT the September 24, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 20, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
OKLAHOMA CITY VA MEDICAL CENTER,
Oklahoma City, OK, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0671
Issued: December 14, 2021

Case Submitted on the Record

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

On March 16, 2021 appellant filed a timely appeal from a March 3, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as No. 21-0671.
On November 28, 2016 appellant, then a 47-year-old supervisor police officer, filed a
traumatic injury claim (Form CA-1) alleging that on November 3, 2016 he injured his lower back
and right leg during his annual medical examination and stress test while in the performance of
duty.1 He stopped work on November 4, 2016 and performed light-duty work from March 1
through June 6, 2017. On November 30, 2017 OWCP accepted the claim for dislocation of the
L4-5 lumbar vertebra. It subsequently expanded the acceptance of the claim to include
intervertebral disc disorders with lumbar radiculopathy.

1

OWCP assigned the present claim OWCP File No. xxxxxx297. Appellant has a prior traumatic injury claim for
a January 23, 2015 fractured left ankle under OWCP File No. xxxxxx089. On February 26, 2020 OWCP awarded 12
percent left lower extremity permanent impairment. Appellant’s claims have not been administratively combined.

On September 30, 2019 appellant filed a schedule award claim (Form CA-7).
By decision dated March 3, 2021, OWCP granted appellant a schedule award for 11
percent permanent impairment of his right lower extremity and 0 percent of his left lower extremity
based on a December 2, 2020 report of DMA Dr. Harris.2
The Board has duly considered the matter and finds that this case is not in posture for
decision. OWCP’s procedures provide that cases should be administratively combined where
correct adjudication depends on cross-referencing between files and where two or more injuries
occur to the same part of the body. 3 Appellant previously received 12 percent permanent
impairment of the left lower extremity under File No. xxxxxx089 and this prior schedule award
was referenced by DMA Dr. Harris in his December 2, 2020 report in the present file. OWCP then
based its schedule award of zero percent left lower extremity permanent impairment on Dr. Harris’
December 2, 2020 report. Due to frequent cross-referencing of the claims, for a full and fair
adjudication, the case must be returned to OWCP to administratively combine the current case
record with OWCP File No. xxxxxx089. This will allow OWCP to consider all relevant claim
files in developing appellant’s schedule award claim. 4
Accordingly, the Board will remand the case to OWCP to administratively combine OWCP
File Nos. xxxxxx297 and xxxxxx089. Following this and other such further development as
deemed necessary, OWCP shall issue a de novo decision on appellant’s increased schedule award
claim.

2

In his report, DMA Dr. Harris referenced the schedule award for 12 percent permanent impairment of appellant’s
left lower extremity under File No. xxxxxx089.
3

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
4

Id.; See R.S., Docket No. 20-1232 (issued April 28, 2021).

2

IT IS HEREBY ORDERED THAT the March 3, 2021 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded to OWCP for further proceedings
consistent with this order of the Board.
Issued: December 14, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.J., claiming as son of B.J., Appellant
and
TENNESSEE VALLEY AUTHORITY,
SHAWNEE FOSSIL PLANT, Chattanooga, TN,
Employer
__________________________________________

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Appearances:
Ellis Jones, for the appellant
Office of Solicitor, for the Director

Docket No. 10-777
Issued: January 3, 2011

Case Submitted on the Record

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

JURISDICTION
On January 27, 2010 appellant filed a timely appeal of the September 16, 2009 decision
of the Office of Workers’ Compensation Programs, which denied his claim for death benefits.
Under 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that the employee’s death on April 6, 2003 was
causally related to his federal employment.
FACTUAL HISTORY
This is the second appeal before the Board.1 In a decision dated July 18, 2008, the Board
reversed an Office decision dated August 27, 2007 and remanded the case for appropriate
development and adjudication of the claim. The Board found that appellant timely filed a claim
1

Docket No. 08-289 (issued July 18, 2008).

for death benefits. The facts and circumstances of the case as set forth in the Board’s prior
decision are incorporated herein by reference.
Appellant’s representative submitted medical records for a hospital admission from
November 14 to 19, 2002, in which the employee presented with left leg pain and was diagnosed
with a left femur fracture. Dr. Burton Stodghill, a Board-certified orthopedic surgeon, noted the
employee underwent a repair of the left femur fracture on November 14, 2002 and opined that
the fracture was possibly secondary to metastatic renal cell cancer. He advised that the
employee’s history was significant for a left nephrectomy in August 2000 for renal cell cancer.
Dr. Stodghill stated that a November 16, 2002 computerized tomography scan of the chest
showed left pleural effusion with left lower lobe atelectasis. On November 20, 2002 the
employee underwent a thoracentesis, which revealed no malignancy or reactive mesotheliel cells.
Dr. Stodghill diagnosed left femoral fracture, bibasilar atelectasis, left pleural effusion, left
nephrectomy in August 2000 secondary to cancer, hypertension and renal insufficiency. On
January 2, 2003 the employee was hospitalized for progressive weakness with metastatic renal
cell carcinoma with anemia and hypercalcemia. He was treated by Dr. Harry W. Carloss, a
Board-certified internist, who noted the employee’s history and advised that he also had a
pulmonary mass with pleural effusions. Pathology reports were negative for malignancy.
Dr. Carloss diagnosed metastatic renal cell carcinoma, anemia, renal insufficient and
hypercalcemia from tumor and discharged the employee on January 10, 2003. The employee
died on April 6, 2003.
In a July 24, 2008 decision, the Office found that the employee’s ex-wife was not an
eligible beneficiary under the Federal Employees’ Compensation Act and could not file a claim
on behalf of the employee.2 Thereafter, on August 18, 2008, appellant, the employee’s son, filed
a claim for compensation by widow, widower and/or children alleging that the employee, a
deceased technical services supervisor, developed renal cell cancer with metastasis while
performing his work duties, which included working with and around asbestos at the employing
establishment. The employee was first aware of his disease on August 15, 1999. He had been
terminated from employment due to a reduction-in-force on November 15, 1996. Appellant’s
representative submitted a death certificate indicating that the employee’s cause of death was
renal cell carcinoma and metastasis with other contributing conditions of small bowel obstruction
and pneumonia.
In an August 20, 2008 statement, appellant’s representative referenced the Board’s
July 18, 2008 decision and asserted that the claim for compensation was timely filed and
established that the employee developed a medical condition in the performance of duty which
resulted in his death. Appellant’s representative referenced an undated statement from a

2

In the prior appeal, the Board noted that the employee’s surviving nondependent children authorized their
mother, the employee’s ex-wife, to represent them in the matter before the Office.

2

supervisor who confirmed that the employee worked in areas containing asbestos when he was
classified as a first period student and as a materials tester.3
In a letter dated December 5, 2008, the Office requested the employing establishment
submit a statement from the employee’s supervisor providing the employees job titles,
employment duties, inclusive dates of employment and exposure to carcinogens while employed.
The employing establishment submitted the employee’s October 26, 1983 and
October 29, 1984 job applications and a job history summary. It provided a job description for a
public safety officer with duties that included receiving visitors and protecting employing
establishment property. The job description for a materials tester included testing on samplings
of coal, limestone, fuel oil, measuring and displacement of coal on the barges and inspection of
the quality of coal. The employing establishment submitted a January 5, 2009 electronic mail
from James M. Bradford, safety consultant and industrial hygienist, who noted that there was no
exposure data on public safety officers or materials testers because those positions did not work
around contaminants in their job function. Mr. Bradford specifically noted that public safety
officers worked in a plant environment and were not exposed to asbestos or other contaminants.
He advised that materials testers worked in a lab environment and were not exposed to asbestos
or coal dust.
The employing establishment submitted a January 26, 2009 statement from James R.
Hubbard, a safety consultant, who noted the employee worked as a public safety officer,
materials tester and as a student generating plant operator from January 7, 1985 to November 15,
1996 prior to being assigned to a workforce reinvestment group beginning July 24, 1995 until his
termination on November 15, 1996. Mr. Hubbard advised that neither the position of public
safety officer or materials tester placed the employee in an area where asbestos was present as
the work areas were outside of the powerhouse. When the employee was in the student
generating plant operator training program he was in a classroom environment. Mr. Hubbard
further noted that the work performed by the employees assigned to the workforce
services/synterprise group was administrative in nature and rarely required him to enter areas
where asbestos existed. In a January 29, 2009 statement, Amanda England, a claims manager for
the employing establishment, submitted an industrial hygiene report prepared by Alliant Corp
dated December 22, 2008, which described general cause and effect of exposure to asbestos and
coal dust.
In a decision dated September 16, 2009, the Office denied appellant’s claim finding that
he did not establish that the employee’s death was causally related to his federal employment. It
found that evidence did not support the level of exposure asserted by appellant and that it was
not established that any workplace exposure caused the employee’s death
3

The employing establishment submitted an undated, unsigned supervisor’s statement noting that the employee
was hired on January 17, 1985 and in 1995 worked in the employer’s “synterprise group” for about one year before
being terminated in a 1996 reduction-in-force. The person noted the employee’s duties were unclear in synterprise
group but he was exposed to asbestos insulation which was present in the employing establishment, for up to two
hours daily. The employee worked in the areas of the plant containing asbestos for the first few months that he was
classified in the student generating plant operator training program and subsequently as a materials tester. The
person noted that the industrial hygiene data indicated that asbestos exposure was well within the permissible levels
and the employee was provided with a respirator, safety glasses, a hard hat and hearing protection.

3

LEGAL PRECEDENT
The Act provides that the United States shall pay compensation for disability or death of
an employee resulting from personal injury sustained while in the performance of duty.4
Appellant has the burden of proving by the weight of the reliable, probative and
substantial evidence that the employee’s death was causally related to his employment. This
burden includes the necessity of furnishing rationalized medical opinion evidence of a cause and
effect relationship, based on a complete factual and medical background, showing causal
relationship. The opinion of the physician must be one of reasonable medical certainty and must
be supported by medical rationale.5 However, an award of compensation in a survivors claim
may not be based on surmise, conjecture or speculation or on appellant’s belief that the
employee’s death was caused, precipitated or aggravated by his employment.6
ANALYSIS
The Board finds that appellant has not established that the employee’s death was caused
by his federal employment.
Appellant claimed that the employee’s death on April 6, 2003 from renal cell cancer was
causally related to his occupational exposure to hazardous chemicals at work. He did not submit
sufficient evidence to establish that the employee was exposed to particular substances at work.
The record does not support the employee’s exposure of contaminants while performing his job
functions. From January 7, 1985 to November 15, 1996 the employee worked as a public safety
officer and a materials tester which included testing samplings of coal, limestone, fuel oil,
performing measuring and displacement of coal on barges. In a January 5, 2009 statement,
Mr. Bradford, a safety consultant and industrial hygienist, noted that there was no exposure data
on public safety officers or materials testers because they did not work around contaminants in
their job function. He noted that public safety officers worked in a plant and had no exposure to
contaminants and material testers worked in a laboratory and were not exposed to asbestos or
coal dust. In a January 26, 2009 statement, Mr. Hubbard, a safety consultant, advised that
neither the position of public safety officer nor materials tester placed the employee in an area
where asbestos was present. Further, when the employee was in the student generating plant
operator training program, he was in a classroom environment. Mr. Hubbard noted that the work
performed by the employees assigned to the workforce services/synterprise group was
administrative in nature and rarely required the employee to enter areas where asbestos existed at
the employing establishment.
The weight of the factual evidence therefore does not support exposure to measurable
levels of coal dust or asbestos. Mr. Hubbard’s statement indicates that the employee may have
had rare exposure to contaminants and Mr. Bradford noted that there was no exposure data for
4

5 U.S.C. § 8133.

5

L.R. (E.R.), 58 ECAB 369 (2007).

6

Jimmy Zenny (Ingrid Hall Zenny), 54 ECAB 577 (2003).

4

the employee’s jobs as persons in such jobs were not exposed to asbestos or coal dust. The
factual evidence does not substantiate that the employee was exposed to measurable amounts of
particular chemicals or contaminants.7
The Board further finds that appellant did not submit rationalized medical evidence based
on an accurate history supporting that any established work factors or exposures caused or
contributed to the employee’s death. Reports from Dr. Stodghill dated November 14 to 19,
2002, noted the employee’s medical history and treatment but did not specifically address
whether any particular employment factors or exposures caused or contributed to the employee’s
metastatic renal cell cancer or other diagnosed conditions that led to the employee’s death. As
Dr. Stodghill did not address whether the employee’s work contributed to conditions that led to
his death, his reports are of limited probative value.8 Similarly, on January 2, 2003, Dr. Carloss
noted treating the employee for progressive weakness with metastatic renal cell carcinoma and
other conditions but he did not specifically address whether the employee’s employment
activities had caused or aggravated the diagnosed medical conditions.
The other medical reports of record similarly do not specifically address how established
employment factors or exposures caused or contributed to a diagnosed medical condition that
contributed to the employee’s death. The death certificate, signed by a physician on April 29,
2003, listed the cause of death as renal cell carcinoma and metastasis. This does not establish
that the renal cell carcinoma was caused or contributed to by the employee’s exposure to any
workplace substance.
Appellant has the burden to prove that the employee’s death on April 6, 2003 was
causally related to his employment. It is not enough for him to express his belief that the
employee’s death was caused by hazardous exposure to contaminants at work. Causal
relationship is a medical issue and must be addressed by a qualified physician. Appellant must
submit to the Office a medical report from a physician who provides an accurate history of the
employee’s employment exposure, that correctly addresses the cause of death on April 6, 2003
and that explains, with sound medical reasoning, how one led to the other. The physician’s
medical explanation is critical and must show that his or her conclusion is sound and logical.
Such rationalized medical opinion evidence is absolutely necessary for appellant to establish the
element of causal relationship.
In the absence of a well-reasoned medical opinion soundly explaining how the
employee’s death resulted from his employment, the Board must find that appellant has not met
his burden of proof. The Board will therefore affirm the Office decision dated September 16,
2009 denying his claim for compensation benefits.

7

An undated and unsigned supervisor’s statement indicated that the employee had asbestos exposure within
permissible levels during a limited time. The Board notes that this statement, lacking proper identification of its
author is of no probative value. F.B., Docket No. 08-2489 (issued June 22, 2009) (documents lacking proper
identification are of no probative value); see D.D., 57 ECAB 734 (2006); Merton J. Sills, 39 ECAB 572 (1988).
8

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).

5

On appeal, appellant through his representative asserts that the undated and unsigned
statement from the employee’s supervisor substantiates that the employee was exposed to
asbestos insulation while working as it was present throughout the employing establishment. As
noted above, this evidence is insufficient to establish exposure to hazardous carcinogens as it is
undated and unsigned. The employing establishment submitted statements from Mr. Bradley and
Mr. Hubbard, safety consultants and industrial hygienists, who confirmed that the employee’s
job duties involved only rare exposure to any contaminants. Furthermore, there is no medical
evidence explaining how such rare exposure would have caused or contributed to the employee’s
death.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that the
employee’s death on April 6, 2003 was causally related to his employment.
ORDER
IT IS HEREBY ORDERED THAT the September 16, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 3, 2011
Washington, DC

Alec J. Koromilas, 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
__________________________________________
L.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Antonio, TX, Employer
__________________________________________

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

Docket No. 12-519
Issued: August 20, 2012

Case Submitted on the Record

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

JURISDICTION
On January 4, 20121 appellant filed a timely appeal from a July 12, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP) affirming the denial of his schedule
award claim. 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, the 180-day time period for determining jurisdiction is computed
beginning on the day following the date of OWCP’s decision. See 20 C.F.R. § 501.3(f)(2). As OWCP’s decision
was issued July 12, 2011, the 180-day computation begins July 13, 2011. 180 days from July 13, 2011 was
January 9, 2012. Since using January 10, 2012, the date the appeal was received by the Clerk of the Board, 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 January 4, 2012 which renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2
3

20 C.F.R. § 8101 et seq.

The Board notes that, following the issuance of the July 12, 2011 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether appellant is entitled to a schedule award for upper and lower
extremity impairment related to his accepted spinal injuries.
On appeal appellant contends that the second opinion examination by Dr. Sofia M.
Weigel, a Board-certified physical medicine and rehabilitation physician, was insufficient to
establish a zero percent impairment rating of his upper and lower extremities.
FACTUAL HISTORY
OWCP accepted that on November 17, 2003 appellant, then a 61-year-old customer
service supervisor, sustained displacement of cervical intervertebral disc without myelopathy and
degeneration of lumbar intervertebral disc while moving mail in the performance of duty. It
authorized L3-4, L4-5 and L5-S1 decompression and fusion surgery. On January 3, 2007 he
returned to work part time as a modified customer service mail preparation liaison.
On February 21, 2008 the employing establishment offered appellant a part-time lightduty position as a modified customer service supervisor.
By decision dated March 17, 2008, OWCP found the position suitable for appellant and
afforded him 30 days to accept the position or provide a written explanation of his reasons for
failure to accept. It noted that appellant abandoned his modified customer service mail
preparation liaison position on December 24, 2007 with no apparent valid cause.
On January 29, 2009 appellant filed a claim for a schedule award.
By letter dated April 7, 2009, OWCP notified appellant of the deficiencies of his schedule
award claim and allotted 30 days for the submission of additional evidence.
Appellant submitted an October 15, 2007 functional capacity evaluation which noted that
he complained of back pain that went down the thighs around to the calves and revealed that the
range of motion of the lumbar spine had no limitations.
In an October 11, 2007 report, Dr. Eugene T. O’Brien, a Board-certified orthopedic
surgeon, reviewed appellant’s medical history and conducted a physical examination. Appellant
had minimal strain in leg-raising symptoms, minimal symptoms on straight-leg raising, normal
strength and no reflex changes or sensory changes in both lower extremities. Dr. O’Brien
concluded that appellant was capable of returning to light-duty work up to four-hour workdays
with lifting restrictions.
In a May 13, 2009 note, Dr. Richard Wilson, a Board-certified orthopedic surgeon,
assigned appellant to class 3. He indicated that the Functional History (GMFH) adjustment score
was 3, the Physical Examination (GMPE) adjustment score was 2 and the Clinical Studies
(GMCS) adjustment score was 2. Dr. Wilson generally concluded that appellant had an 18
percent permanent impairment rating.
On December 7, 2009 Dr. Wilson opined that appellant’s date of maximum medical
improvement was September 2005. He reported that appellant did not have decreased strength.
2

Dr. Wilson did have ankylosis and loss of sensation in L4 and L5 on the left. He indicated that
he would answer “yes” to Questions 1 through 15 on page 600 of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (hereinafter, A.M.A., Guides)
“Pain Disability Questionnaire.” Dr. Wilson also submitted a permanent impairment worksheet
from the same day.
In an April 12, 2010 progress report, Dr. Wilson stated that appellant was using a cane
for walking, had decreased range of motion on movement of the back, had significant tenderness
to palpation along the paraspinal muscles and the lumbar spine and increased pain along the left
side with pain into the buttock.
OWCP referred appellant to Dr. Weigel for a second opinion examination.4 In a report
dated November 22, 2010, Dr. Weigel provided an evaluation of appellant’s permanent
impairment under the standards of the sixth edition of the A.M.A., Guides.5 She noted that the
impairment rating for a spinal condition is based solely on permanent impairment of the
extremities. Dr. Weigel found no evidence of focal spinal nerve involvement or spinal nerve
injury. Based on Tables 1 and 2 of The Guides Newsletter July/August 2009, she assigned
appellant to class 0 as there were no objective sensory or motor findings or deficits for the L4-S1
nerves. Dr. Weigel indicated that grades were not relevant to appellant’s impairment rating and
concluded that he had a zero percent permanent impairment of the bilateral upper and lower
extremities.
On December 29, 2010 an OWCP medical adviser concurred with Dr. Weigel’s opinion
and concluded that appellant had no (zero percent) impairment of any upper or lower extremity
based on the sixth edition of the A.M.A., Guides. He noted that Dr. Weigel found no focal
neurological deficits in the upper and lower extremities and recommended class 0 findings for
radiculopathy resulting in no (zero percent) permanent impairment. The medical adviser found
that maximum medical improvement was achieved on December 7, 2009.
By decision dated January 6, 2011, OWCP denied appellant’s schedule award claim on
the grounds that the medical evidence did not establish a ratable impairment of a scheduled
member. It relied upon Dr. Weigel’s November 22, 2010 report and the medical adviser’s
December 29, 2010 report in reaching this determination.
On January 25, 2011 appellant requested an oral hearing before an OWCP hearing
representative. In a March 2, 2011 report, Dr. Wilson reiterated his 18 percent impairment rating
and indicated that appellant had chronic radicular-type pain in the back radiating down to the
legs with burning pain and tingling. Appellant also submitted patient status and duty status
reports dated February 25, 2011 and an initial injury evaluation dated February 26, 2011 by
Dr. Anthony Hicks, a Board-certified internist.

4

By decision dated December 1, 2010, OWCP proposed to suspend appellant’s compensation due to his failure to
report for a second opinion examination.
The record shows that Dr. Weigel examined appellant on
November 22, 2010.
5

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

3

On May 3, 2011 an oral hearing was held via telephone before an OWCP hearing
representative.
By decision dated July 12, 2011, an OWCP hearing representative affirmed the
January 6, 2011 decision denying appellant’s claim for a schedule award finding that
Dr. Weigel’s November 22, 2010 report constituted the weight of the medical evidence.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of her claim, including that she sustained an injury in the performance of duty
as alleged and that an employment injury contributed to the permanent impairment for which
schedule award compensation is alleged.6
The schedule award provision of FECA7 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. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.9 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.10 It is well established that in determining the amount of a
schedule award for a member of the body that sustained an employment-related permanent
impairment, preexisting impairments of the body are to be included.11 A schedule award is not
payable under section 8107 of FECA for an impairment of the whole person.12
A schedule award is not payable for a member, function or organ of the body not
specified in FECA or in the implementing regulations.13 Neither FECA nor the implementing
6

See Bobbie F. Cowart, 55 ECAB 476 (2004). In Cowart, the employee claimed entitlement to a schedule award
for permanent impairment of her left ear due to employment-related hearing loss. The Board determined that
appellant did not establish that an employment-related condition contributed to her hearing loss and, therefore, it
denied her claim for entitlement to a schedule award for the left ear.
7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

Id.

10

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

11

See Dale B. Larson, 41 ECAB 481, 490 (1990); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Schedule Awards, Chapter 3.700.3(a)(3) (September 1995). This portion of OWCP procedure provides that the
impairment rating of a given scheduled member should include any preexisting permanent impairment of the same
member or function.
12

See Gordon G. McNeill, 42 ECAB 140, 145 (1990).

13

See Tania R. Keka, 55 ECAB 354 (2004).

4

regulations provide for the payment of a schedule award for the permanent loss of use of the
back or spine.14 As FECA makes provision for the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originates in the spine, if the medical evidence establishes such impairment as a
result of the employment injury.15
The medical evidence required to establish a causal relationship is rationalized medical
opinion 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.16
ANALYSIS
The Board finds that the medical evidence fails to establish that appellant sustained any
permanent impairment to a scheduled member of the body. OWCP accepted his claim for
displacement of cervical intervertebral disc without myelopathy and degeneration of lumbar
intervertebral disc. Although appellant may not receive a schedule award for permanent
impairment to his back or spine,17 he may be entitled to a schedule award for any permanent
impairment to his upper extremities, provided the medical evidence establishes such
impairment.18 The medical evidence of record does not establish that he sustained permanent
impairment to his upper extremities due to the accepted cervical conditions.
The Board finds that OWCP properly relied on the December 29, 2010 report from an
OWCP medical adviser who, based on the clinical findings and report of a second opinion
physician, Dr. Weigel, concluded that appellant had no permanent impairment of either arm
under the sixth edition of the A.M.A., Guides. OWCP’s medical adviser properly reviewed the
medical record and found no basis for rating impairment to the arms.19 He reviewed a
November 22, 2010 assessment of Dr. Weigel, the Board-certified physical medicine and

14

See id. FECA itself specifically excludes the back from the definition of organ. 5 U.S.C. § 8101(19).

15

See George E. Williams, 44 ECAB 530 (1993). In 1966, amendments to FECA modified the schedule award
provision to provide for an award for permanent impairment to a member of the body covered by the schedule
regardless of whether the cause of the impairment originated in a scheduled or nonscheduled member.
16

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

17

5 U.S.C. § 8101(19); Patricia J. Horney, 56 ECAB 256 (2005).

18

See George E. Williams, supra note 15.

19

The Board notes that it is appropriate for an OWCP medical adviser to review the clinical findings of the
treating physician to determine the permanent impairment. See Federal (FECA) Procedure Manual, Part 3 -Medical, Medical Examinations, Chapter 3.500.5(c) (September 1995); Richard R. LeMay, 56 ECAB 341 (2006).

5

rehabilitation physician serving as an OWCP referral physician.20 The medical adviser noted
that Dr. Weigel found no focal neurological deficits in the upper extremities and recommended
class 0 findings for radiculopathy resulting in zero percent permanent impairment. He properly
concluded that there was no medical evidence of impairment to the bilateral upper and lower
extremities resulting from the accepted conditions and that, therefore, there was no ratable
impairment of a scheduled member under the sixth edition of the A.M.A., Guides.
Appellant did not submit sufficient medical evidence to establish that he sustained a
permanent impairment to a specified member, organ or function of the body listed in FECA or its
implementing regulations. The medical evidence of record supports that he has no impairment to
his arms as a result of his cervical condition. The Board finds that appellant is not entitled to a
schedule award as a result of his accepted employment-related spinal injury.
On appeal appellant contends that the second opinion examination by Dr. Weigel was
insufficient to represent the weight of medical opinion. The record reflects that Dr. Weigel’s
November 22, 2010 second opinion report was based on a thorough review of appellant’s
medical records, medical history and a physical examination. She properly provided an
evaluation of appellant’s permanent impairment under the sixth edition of the A.M.A., Guides.
Thus, the Board finds that appellant’s arguments are not substantiated.
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 has not established any ratable upper or lower extremity
impairment related to the accepted spinal injuries.

20

In her November 22, 2010 report, Dr. Weigel evaluated appellant’s permanent impairment under Tables 1 and
2 of The Guides Newsletter July/August 2009 of the sixth edition of the A.M.A., Guides. She found no evidence of
focal spinal nerve involvement or spine nerve injury. Dr. Weigel indicated that appellant had no objective sensory
or motor findings or deficits for the L4-S1 nerves which fell under class 0 on these tables and concluded that
appellant had a zero percent permanent impairment of the upper and lower extremities under the sixth edition of the
A.M.A., Guides. The Board notes that the sixth edition of the A.M.A., Guides became effective on May 1, 2009.
See supra note 10.

6

ORDER
IT IS HEREBY ORDERED THAT the July 12, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 20, 2012
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Spencer, IN, Employer
__________________________________________
Appearances:
Appellant, pro se
Ashkea Herron McAllister, for the Director

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Docket No. 13-1298
Issued: February 27, 2014

Case Submitted on the Record

ORDER GRANTING MOTION TO REMAND
AND CANCELLING ORAL ARGUMENT
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On May 6, 2013 appellant filed an application for review of a merit decision of the Office
of Workers’ Compensation Programs (OWCP) dated November 6, 2012 that denied her claim
that she sustained a recurrence of disability on April 2, 2010 and a December 5, 2012 decision
that denied her request for merit review.1
On October 23, 2013 the Director of OWCP filed a motion to remand the case and cancel
oral argument. He maintained that the case was not in posture for decision and requested that the
Board set aside the November 6 and December 5, 2012 decisions and remand the case to OWCP
for further development.2 The Director indicated that, under the facts and circumstances of the
case, it was unclear whether appellant was filing a claim for recurrence of a medical condition,
recurrence of disability, or both, and that on remand OWCP would request the needed
clarification and whether appellant sought authorization for additional surgery. He concluded
1

The recurrence claim had initially been denied on June 8, 2012 and was again denied in a merit decision dated
September 14, 2012.
2

The Board notes that appellant requested oral argument that was scheduled for October 30, 2013. The oral
argument was postponed on October 23, 2013 and has not been rescheduled.

that, after further development and review of the claim under the appropriate standards
applicable to appellant’s intended original claim, OWCP would issue a de novo decision on her
request for additional benefits under the Federal Employees’ Compensation Act.3
On October 25, 2013 the Clerk of the Board served appellant with a copy of the
Director’s motion to remand and cancel oral argument.
The Board has duly considered the matter and concludes that the Director’s motion to
remand and cancel oral argument should be granted.
IT IS HEREBY ORDERED THAT the motion to remand filed by the Director of the
Office of Workers’ Compensation Programs be granted. OWCP’s decisions dated December 5
and November 6, 2012 are set aside and the case is remanded to OWCP for proceedings
consistent with this order of the Board.
Issued: February 27, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

3

5 U.S.C. §§ 8101-8193.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Rochester, MN, Employer
__________________________________________

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

Docket No. 14-898
Issued: March 26, 2015

Oral Argument February 25, 2015

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On March 11, 2014 appellant filed a timely appeal from a February 5, 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 overpayment decision.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment in the amount of $104,428.67 for the period October 30, 2010 through March 9,
2013 because he continued to receive compensation for a schedule award after the period of the
award had expired; and (2) whether it properly found that he was at fault in the creation of the
overpayment and was, therefore, ineligible for waiver of recovery of the overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 30, 2008 appellant, then a 43-year-old mail processing clerk, filed a Form CA-2
claim for benefits, alleging a right wrist condition causally related to employment factors.
OWCP accepted the claim for right-sided de Quervains/tenosynovitis. Appellant underwent
surgery on October 29, 2008 and began receiving compensation for temporary total disability.
On July 29, 2009 appellant accepted a job as a modified mail processing clerk with the
employing establishment.
By decision dated October 23, 2009, OWCP reduced appellant’s compensation to zero,
finding that his actual wages as a modified mail processing clerk exceeded his wages for the job
he held on the date of injury, that he had held this position for two months or more, and that
therefore the position fairly and reasonably represented his wage-earning capacity. Its final
payment of disability compensation, in the amount of $871.51, was sent to him to cover the
period July 18 to 27, 2009, the date he began work as a modified mail processing clerk.
In a Form CA-7 dated May 4, 2010, appellant requested a schedule award based on a
partial loss of use of his right upper extremity.
By decision dated August 16, 2010, OWCP granted appellant a schedule award for a 10
percent permanent impairment of the right upper extremity for the period March 25 to
October 29, 2010 or a total of 31.2 weeks of compensation. The decision stated that “payment of
your award ends when you have been paid for the last day shown in item 3 above.”
In a Form EN1032 completed on September 22, 2010, received by OWCP on
September 27, 2010, appellant indicated that he had last worked from July 29, 2009 to March 17,
2010 and that he was currently receiving disability retirement checks.
In Forms EN1032 completed on September 22, 2011 and October 4, 2012, appellant
reported that he had not received any benefits paid by the Federal Government within the past 15
months.
In a letter dated March 25, 2013, the employing establishment’s Office of the Inspector
General (OIG) informed OWCP that it had identified an overpayment of appellant’s OWCP
benefits. It stated that appellant had been granted a schedule award on August 16, 2010 for a
period of 31.2 weeks of compensation, at the weekly rate of $824.25. The total amount of the
award was $25,716.60; however, appellant was still receiving schedule award benefits pursuant
to this award. OIG’s letter indicated that he had received payments from March 25, 2010
through March 9, 2013, totaling $130,214.92. This resulted in an overpayment of $104,499.32
($130,214.92 in payments minus $25,716.60 the amount of benefits he should have received
from March 25 to October 29, 2010). The letter included a worksheet listing monthly payments
to appellant from March 25, 2010 to March 9, 2013.
In a letter dated December 5, 2013, OWCP advised appellant that it had made a
preliminary determination that he received a $104,428.67 overpayment of compensation for the
period October 30, 2010 to March 9, 2013. This overpayment occurred, the letter explained,
because a computer system error continued to make schedule award payments for a significant
2

period of time after the schedule award ended. OWCP found that appellant was with fault in the
creation of this overpayment because he continued to accept payments without returning them to
OWCP, when he knew or should have known that he was not entitled to the compensation,
thereby creating an overpayment. It calculated the amount of the overpayment for the period
October 30, 2010, the last day of the schedule award to March 9, 2013 by adding the monthly
checks appellant received during this period. OWCP advised him that he must complete and
submit an enclosed Form OWCP-20 overpayment recovery questionnaire within 30 days if he
wished to request waiver of the overpayment.
On January 20, 2014 appellant completed the form OWCP-20 and listed his monthly
income and expenses. He also submitted a January 20, 2014 letter in which he stated that, after
he received the final payment for the schedule award, he received another payment from OWCP.
At this time his wife called OWCP and was told that “everything was fine and payment was not
an error.” Appellant stated that he subsequently received another payment but continued to
suspect that an error had been made. He asserted that, because he had previously received
payment for loss of wages, he assumed that this was why he was still receiving payments.
In a decision dated February 5, 2014, OWCP finalized its determination regarding the
overpayment of a schedule award for which appellant was at fault and not eligible for waiver. It
found that he was at fault in creating the overpayments as he knew or should have known that the
payments were incorrect.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA2 and its implementing regulations3 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. Section 20 C.F.R. § 10.404
states that compensation is provided for specified periods of time for the permanent loss or loss
of use of certain members.
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $104,428.67 for the period October 30, 2010 to
March 9, 2013. The amount of the overpayment is not in dispute.
Appellant was granted a schedule award on August 16, 2010 for the period March 25 to
October 29, 2010, for a total of 31.2 weeks of compensation. The evidence of record establishes
that he continued to receive schedule award payments from OWCP after October 29, 2010, the
date the award was scheduled to expire, until March 9, 2013. Consequently, any payments
appellant received from OWCP beginning October 30, 2010 constituted an overpayment of
benefits. OWCP properly calculated the $104,428.67 overpayment by totaling the amount of

2

Id. at § 8107.

3

20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th ed. 2009).

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compensation checks appellant received during the period October 30, 2010 through
March 9, 2013. The Board affirms its finding of fact and amount of overpayment.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA4 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.”
No waiver of an overpayment is possible if the claimant is not “without fault” in helping to
create the overpayment.5
In determining whether an individual is with fault, section 10.433(a) of OWCP’s
regulations provide in relevant part:
“A recipient who has done any of the following will be found to be at fault with
respect to creating an overpayment:
Made an incorrect statement as to a material fact which the individual
knew or should have known to be incorrect; or
Failed to provide information which the individual knew or should have
known to be material; or
Accepted a payment which he or she knew or should have known to be
incorrect.6”
With respect to whether an individual is without fault, section 10.433(b) of OWCP’s
regulations provide in relevant part:
“Whether or not [OWCP] determines that an individual was at fault with respect
to the creation of an overpayment depends on the circumstances surrounding the
overpayment. 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.”7
ANALYSIS -- ISSUE 2
OWCP applied the third standard in determining that appellant was at fault in creating the
overpayment.

4

5 U.S.C. § 8129(a)-(b).

5

Bonnye Mathews, 45 ECAB 657 (1994).

6

20 C.F.R. § 10.433(a).

7

Id. at § 10.433(b).

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OWCP found that appellant was at fault in the creation of the overpayment as he
accepted payments that he knew or should have known he was not entitled to receive. The
record establishes that it informed appellant in its August 16, 2010 schedule award decision that
payment of his award was supposed to end when he had been paid for the last day shown in the
award, October 29, 2010. Appellant stated in his January 20, 2014 letter that his wife contacted
OWCP and inquired as to the propriety of the continuing schedule award payments. This
demonstrated his awareness that acceptance of compensation benefits for periods after
October 29, 2010 was incorrect. The record also indicates that OWCP discontinued
compensation for wage loss effective July 27, 2009, the date he had returned to work. Appellant
therefore had no expectation or right to further wage-loss benefits.
Further, the Board notes that on the Forms EN1032 appellant completed on
September 22, 2011 and October 4, 2012, he stated, incorrectly, that he had not received any
benefits paid by the Federal Government within the past 15 months.
The record clearly indicates that appellant knew or should have known that acceptance of
compensation benefits for periods after October 29, 2010 was incorrect. However, appellant
continued to accept payments after this date which he knew or should have known were
incorrect. As appellant accepted compensation benefits from OWCP which covered the period
October 30, 2010 through March 9, 2013, the Board finds that he was at fault in the creation of
the overpayment and is not entitled to waiver.8
With respect to the recovery of the overpayment in compensation, the Board’s
jurisdiction is limited to reviewing those cases where OWCP seeks recovery from continuing
compensation benefits under FECA.9 As appellant is no longer receiving wage-loss
compensation, the Board does not have jurisdiction with respect to recovery of the overpayment
under the Debt Collection Act.10
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $104,428.67 for the period October 30, 2010 through March 9, 2013 because he continued to
receive compensation for a schedule award after the period of the award had expired. The Board
further finds that OWCP properly found that appellant was at fault in the creation of the
overpayment and is therefore not entitled to waiver.

8

Lawrence J. Dubuque, 55 ECAB 667, 673 (2004).

9

Terry A. Keister, 56 ECAB 559 (2005); see also Cheryl Thomas, 55 ECAB 610 (2004).

10

Cheryl Thomas, id.

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ORDER
IT IS HEREBY ORDERED THAT the February 5, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 26, 2015
Washington, DC

Patricia Howard Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.R., Appellant
and
DEPARTMENT OF DEFENSE, WARNER
ROBINS AIR FORCE BASE,
Warner Robins, GA, Employer
__________________________________________

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

Docket No. 08-2239
Issued: June 2, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 12, 2008 appellant filed a timely appeal from a June 6, 2008 decision of the
Office of Workers’ Compensation Programs denying continuation of pay. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant is entitled to continuation of pay. On appeal, she contends
that she should be able to file for all leave lost due to her injury.
FACTUAL HISTORY
On April 15, 2008 appellant, then a 48-year-old supply technician, filed a traumatic
injury claim (Form CA-1) alleging that on February 27, 2008 while processing end items for
storage she felt discomfort in her left shoulder. The next morning, she attempted to push a cart
but it was heavier than she thought and, in attempting to stop the cart from heading down an
incline, she jerked her shoulder. The employing establishment noted that appellant did not miss
time from work.

In a supervisory mishap report, dated April 14, 2008, appellant’s supervisor noted that
appellant did not report the incident at the time it occurred.
In response to a May 14, 2008 Office letter requesting additional information, appellant
submitted an April 11, 2008 statement. After the incident on February 27, 2008, she began to
notice increasing left shoulder pain. Appellant sought medical treatment on March 10, 2008,
when the pain became too intense to bear. She stated that she had a magnetic resonance imaging
(MRI) scan on April 2, 2008, revealing an articular surface partial thickness tear. This finding
was supported by an April 9, 2008 nerve test evaluation.
On May 19, 2008 appellant explained that she did not report the injury immediately
because she initially believed her shoulder discomfort was due to moving heavier than usual
equipment. She saw a doctor on February 29, 2008, but was told her condition was probably
only arthritis related. When appellant informed her supervisor of her medical appointment, the
supervisor asserted that she should have been notified when the pain began and that appellant
needed to file a traumatic injury claim immediately. Appellant also submitted an April 10, 2008
e-mail where she notified her supervisor that she sustained a work-related injury.
By decision dated June 6, 2008, the Office accepted appellant’s claim for left rotator cuff
sprain, complete left rotator cuff rupture and adhesive capsulitis of the left shoulder. It noted that
it did not accept cervicalgia. In a second decision of the same date, the Office denied
continuation of pay on the grounds that appellant did not report her injury on an Office-approved
form within 30 days following the injury.
LEGAL PRECEDENT
Section 81181 of the Federal Employees’ Compensation Act2 provides for payment of
continuation of pay, not to exceed 45 days, to an employee who has filed a claim for a period of
wage loss due to traumatic injury with her immediate supervisor on a form approved by the
Secretary of Labor within the time specified in section 8122(a)(2) of this title. Section
8122(a)(2)3 provides that written notice of injury must be given as specified in section 8119.
The latter section provides in part that notice of injury shall be given in writing within 30 days
after the injury.4
Claims that are timely under section 8122 are not necessarily timely under section
8118(a). Section 8118(a) makes continuation of pay contingent on the filing of a written claim
within 30 days of the injury.5 When an injured employee makes no written claim for a period of

1

5 U.S.C. § 8118.

2

Id. at §§ 8101-8193.

3

Id. at § 8122(a)(2).

4

Id. at § 8119(a), (c). See also Gwen Cohen-Wise, 54 ECAB 732 (2003).

5

Id. at § 8118(a).

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wage loss within 30 days, she is not entitled to continuation of pay, notwithstanding prompt
notice of injury.6
The Act’s implementing regulations provide, in pertinent part, that to be eligible for
continuation of pay, a claimant must: (1) have a traumatic injury which is job related and the
cause of the disability and/or the cause of lost time due to the need for medical examination and
treatment; (2) file Form CA-1 within 30 days of the date of injury; and (3) begin losing time
from work due to the traumatic injury within 45 days of the injury.7
ANALYSIS
On April 15, 2008 appellant filed a traumatic injury claim for a February 27, 2008 injury.
Because she filed the claim on April 15, 2008, the Board finds that it was not filed within 30
days of the injury, as specified in the Act. Therefore, she is not entitled to continuation of pay.8
Appellant contends on appeal that she is entitled to compensation for her leave lost while
obtaining treatment for her left shoulder condition. The Office’s June 6, 2008 decision only
denied continuation of pay and not wage-loss compensation or leave buy back. The Board notes
that the Office accepted her claim for left rotator cuff sprain, complete left rotator cuff rupture
and adhesive capsulitis of the left shoulder. As noted in the Office decision, appellant is eligible
to file for other compensation benefits related to these conditions, including lost wages.9
CONCLUSION
The Board finds that appellant is not entitled to continuation of pay for her February 27,
2008 employment injury because she failed to timely file a claim within 30 days of the injury.

6

Laura L. Harrison, 52 ECAB 515 (2001).

7

20 C.F.R. § 10.205(a)(1-3). See also Carol A. Lyles, 57 ECAB 265 (2005).

8

See Dodge Osborne, 44 ECAB 849 (1993).

9

See id. (where the Board noted that, although the employee was not entitled to continuation of pay, his claim
was timely so as to make him eligible for consideration of other compensation benefits under other provisions of the
Act).

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ORDER
IT IS HEREBY ORDERED THAT the June 6, 2008 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 2, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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