United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Mount Airy, NC, Employer
__________________________________________

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

Docket No. 19-1845
Issued: May 8, 2020

Case Submitted on the Record

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

JURISDICTION
On September 3, 2019 appellant filed a timely appeal from an April 15, 2019 merit decision
and a May 23, 2019 nonmerit 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.2
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish a medical
condition causally related to the accepted employment exposure; and (2) whether OWCP properly
denied appellant’s request for reconsideration of the merits of her claim pursuant to 5 U.S.C.
§ 8128(a).
1

5 U.S.C. § 8101 et seq.

2
The Board notes that appellant submitted additional evidence on appeal. 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.

FACTUAL HISTORY
On March 8, 2019 appellant, then a 48-year-old sales and services/distribution associate,
filed an occupational disease claim (Form CA-2) alleging that she was exposed to carbon
monoxide gas, which had entered the employing establishment from an outside heater while she
was in the performance of duty. She indicated that she first became aware of her condition and
attributed it to factors of her federal employment on January 24, 2019. Appellant stopped work
on January 24, 2019 and returned to work on January 25, 2019.
In a March 11, 2019 development letter, OWCP informed appellant that the evidence of
record was insufficient to establish her claim. It advised her of the type of factual and medical
evidence needed and provided a questionnaire for her completion. In a separate development letter
of even date, OWCP requested additional information from the employing establishment regarding
appellant’s inhalation exposure to potentially hazardous substances. It afforded both parties 30
days to submit the necessary evidence.
OWCP subsequently received a February 19, 2019 payment request issued by a hospital
provider with regard to a hospital visit by appellant on January 24, 2019.
By decision dated April 15, 2019, OWCP denied appellant’s claim finding that the medical
evidence of record was insufficient to establish a valid medical diagnosis causally related to the
accepted employment event.
On April 30, 2019 appellant requested reconsideration and submitted an unsigned
January 24, 2019 hospital record, which noted Dr. Casey J. Davis, a Board-certified emergency
medicine physician, as an attending physician and a diagnosis of an exposure to carbon monoxide
at work.
By decision dated May 23, 2019, OWCP denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related

3

Supra note 1.

4

E.W., Docket No. 19-1393 (issued January 29, 2020); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

2

to the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors.7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.8 The opinion of the physician must be based on a complete and
accurate factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.9
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents, is sufficient to establish causal relationship.10
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted employment exposure.
A February 19, 2019 payment request issued by a hospital provider, indicated that appellant
visited a hospital on January 24, 2019. However, this form was not a medical report signed by a
physician and provided no firm medical diagnosis, medical opinion, or objective findings of any
kind.11 The Board therefore finds that this document is of no probative value and is insufficient to
establish appellant’s claim.
Section 10.303 of OWCP’s regulations provides that simple exposure to a workplace
hazard does not constitute a work-related injury entitling an employee to medical treatment under
FECA unless the employee has sustained an identifiable injury or medical condition as a result of
5
L.C., Docket No. 19-1301 (issued January 29, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

20 C.F.R. § 10.115; E.S., Docket No. 18-1580 (issued January 23, 2020); L.M., Docket No. 13-1402 (issued
February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
7

See T.L., Docket No. 18-0778 (issued January 22, 2020); Roy L. Humphrey, 57 ECAB 238, 241 (2005); Victor J.
Woodhams, 41 ECAB 345, 352 (1989).
8

J.F., Docket No. 18-0492 (issued January 16, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

A.M., Docket No. 18-0562 (issued January 23, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

10

E.W., supra note 4; Gary L. Fowler, 45 ECAB 365 (1994).

11

M.H., Docket No. 19-0162 (issued July 3, 2019); see also Z.G., 19-0967 (issued October 21, 2019); D.D., 57
ECAB 734 (2006); Merton J. Sills, 39 ECAB 572, 575 (1988) (a medical report which is unsigned or bears an illegible
signature cannot be considered probative medical evidence as its author cannot be identified as physician).

3

that exposure.12 Since appellant has not submitted medical evidence diagnosing an identifiable
medical condition, she has not met her burden of proof to establish her claim.
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8128 (a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation, at any time, on his own motion or on application.13
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.14
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.15 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.16 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.17
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
In her request for reconsideration, appellant did not show that OWCP erroneously applied
or interpreted a specific point of law, nor did she advance a new and relevant legal argument not
previously considered. Accordingly, she is not entitled to a review of the merits of her claim based
on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
On reconsideration appellant submitted a January 24, 2019 hospital record. The underlying
issue in this case is whether appellant submitted medical evidence sufficient to establish a valid
12

20 C.F.R. § 10.303; J.K., Docket No. 18-1508 (issued February 5, 2019).

13

5 U.S.C. § 8128(a); see N.C., Docket No. 19-1378 (issued February 13, 2020); W.C., 59 ECAB 372 (2008).

14

20 C.F.R. § 10.606(b)(3); see J.M., Docket No. 19-1169 (issued February 7, 2020); C.N., Docket No. 08-1569
(issued December 9, 2008).
15

Id. at § 10.607(a); see Y.H., Docket No. 18-1618 (issued January 21, 2020).

16

Id. at § 10.608(a); see S.B., Docket No. 19-1320 (issued January 17, 2020); M.S., 59 ECAB 231 (2007).

17

Id. at § 10.608(b); see S.C., Docket No. 19-1305 (issued December 9, 2019); E.R., Docket No. 09-1655 (issued
March 18, 2010).

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medical diagnosis in connection with the accepted employment incident. The Board has held that
a report that does not contain the author’s signature has no probative value, as it does not establish
that the author is a physician.18 As such, the Board finds that the hospital record is irrelevant to
the underlying issue as it does not contain a physician’s signature. Accordingly, appellant is not
entitled to a review of the merits of her claim based on the third above-noted requirement under
20 C.F.R. § 10.606(b)(3).
The Board therefore finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.19
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted employment event. The Board also finds that OWCP
properly denied appellant’s request for reconsideration of the merits of her claim pursuant to
5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 23 and April 15, 2019 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: May 8, 2020
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

18

See Z.G., Docket No. 19-0967 (issued October 21, 2019); D.D., 57 ECAB 734 (2006); Merton J. Sills, 39 ECAB
572, 575 (1988).
19

Y.H., supra note 15 (when a request for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(3), OWCP will deny the request for reconsideration without reopening the case
for a review on the merits).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.I., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Kahului, HI, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 19-1397
Issued: July 7, 2020

Case Submitted on the Record

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

On June 11, 2019 appellant filed a timely appeal from a March 18, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as No. 19-1397.1
On June 29, 2016 appellant, then a 43-year-old transportation security officer, filed a
traumatic injury claim (Form CA-1) alleging that, on that date, she injured her left upper and lower
extremities when she fell down stairs while in the performance of duty. She stopped work that
day. OWCP accepted the claim for strain of the fascia and tendon of the posterior muscle group
of the left thigh, left shoulder contusion, strain of the fascia and tendon at the shoulder and upper
arm level of the left arm, and left hip contusion. It paid appellant wage-loss compensation on the
supplemental rolls commencing August 14, 2016.

1

The Board notes that, following the March 18, 2019 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.

On December 12, 2016 OWCP referred appellant for a second opinion examination with
Dr. Richard Y. Kimura, a Board-certified orthopedic surgeon to assess appellant’s employmentrelated conditions and disability status. In a report dated February 1, 2017, Dr. Kimura reviewed
in detail appellant’s history of injury and medical treatment. He related appellant’s current
physical examination findings and noted that the magnetic resonance imaging (MRI) scan of the
left shoulder revealed degenerative changes of the glenohumeral joint and acromioclavicular joint
and partial tears in the subscapularis supraspinatus, and infraspinatus. Dr. Kimura thereafter
opined that the partial tears of the rotator cuff and the calcific tendinitis in appellant’s left shoulder
could have been caused by her fall. He diagnosed cervical strain, which was superimposed on
prior degenerative disc disease and stenosis, and which he explained was probably strained by the
bumping during her fall. Dr. Kimura also diagnosed bilateral carpal tunnel syndrome and
explained that, while appellant had right wrist symptoms prior to the fall, she did not have left
carpal tunnel symptoms until after the fall, therefore her left carpal tunnel syndrome could also
have been precipitated by the fall. He opined that appellant was disabled from her date-of-injury
position.
By letter dated March 2, 2017, OWCP requested that Dr. Kimura clarify his February 1,
2017 report, to provide definitive evidence establishing that appellant’s cervical strain, carpal
tunnel syndrome, and partial rotator cuff tears were caused by her fall on June 29, 2016. In a
supplemental report dated March 31, 2017, Dr. Kimura explained with regard to the diagnoses of
partial rotator cuff tears that “in cases like this you cannot show definitive evidence to show that
these problems were caused by the injury you can only go by the presence of symptoms which
occurred after the injury.” With regard to appellant’s cervical strain, aggravation of her preexisting
cervical conditions, and left carpal tunnel syndrome, he provided a similar response, noting that
appellant had a positive nerve conduction velocity test, which was an objective finding, and that
the time relationship of the injury to the subsequent symptoms would lead to these diagnoses.
Dr. Kimura also noted that aggravation of appellant’s preexisting cervical conditions should have
healed in approximately 8 to 10 months, however she had not returned to her preexisting base-line
condition. He explained that her current medical restrictions were due to the fall of June 29, 2016.
Appellant returned to modified-duty work effective March 27, 2017. As of May 3, 2017,
she claimed compensation for leave without pay (LWOP) for total disability from work. OWCP
paid appellant compensation on the supplemental rolls for total disability through June 26, 2017.
Appellant returned to work at four hours per day as of June 26, 2017, claiming compensation for
four hours per day of LWOP. OWCP paid her compensation on the supplemental rolls for the
claimed four hours per day.
As of March 23, 2018, appellant continued to claim compensation for LWOP due to total
disability from work through March 2, 2019. OWCP continued to pay appellant compensation on
the supplemental rolls for four hours per day, pending development of her claim for the four hours
remaining on each claimed day.
By letter dated April 26, 2018, Dr. Jon F. Graham, a neurosurgeon, requested that the
acceptance of appellant’s traumatic injury claim be expanded to include diagnoses of cervical
radiculopathy, and cervical spondylosis without myelopathy or radiculopathy.

2

By letter dated March 19, 2018, Dr. Diane Nagasaka, a family practitioner, requested that
appellant’s claim be expanded to include the additional conditions of chronic neck pain and
cervical spondylosis without myelopathy. She indicated that recent diagnostics demonstrated
severe changes from her traumatic fall at work on June 29, 2016. Appellant continued to treat with
Dr. Nagasaka through 2018 and 2019. On August 30, 2018 Dr. Nagasaka requested authorization
for cervical surgery.
On January 9, 2019 OWCP forwarded the case record, along with a statement of accepted
facts (SOAF), to Dr. Todd Fellars, a Board-certified orthopedic surgeon serving as district medical
adviser (DMA), to determine whether appellant’s cervical condition arose as a consequence of the
accepted work-related injury and whether it had caused total disability since March 2018. It
requested that he review specific reports from Dr. Nagasaka, but did not note the February 1, 2017
and March 31, 2017 second opinion reports Dr. Kimura.
In a report dated January 15, 2019, Dr. Fellars reviewed the SOAF and the case record. He
opined that it was medically probable that the work event did not cause her radicular symptoms,
but that appellant simply had a progression of her degenerative condition. Dr. Fellars further
opined that appellant’s radicular symptoms and findings of degenerative disc disease were not
related to the work incident, as these conditions likely preexisted her fall.
By decision dated March 18, 2019, OWCP denied expansion of the acceptance of
appellant’s claim to include cervical herniated disc, incomplete tear of the rotator cuff, numbness
of the upper extremity, and bilateral spondylosis of the cervical spine with myelopathy.
Consequently, it also denied her claim for total disability for the period March 23, 2018 through
March 2, 2019, as well as her request for authorization for surgery, as they were based upon the
denied conditions. OWCP based its decision on the January 15, 2019 report of Dr. Fellars.
The Board finds that this case is not in posture for decision.
Dr. Fellars was not asked to review the second opinion reports of Dr. Kimura dated
February 1 and March 31, 2017, despite the fact that Dr. Kimura had in general terms supported
that appellant’s cervical conditions, including cervical strain and aggravation of her preexisting
cervical conditions; left shoulder conditions including partial rotator cuff tear; and left carpal
tunnel syndrome were causally related to appellant’s accepted June 29, 2016 employment injury.
Dr. Fellars’ report of January 15, 2019 contained no reference to this previous medical
development on the part of OWCP.
It is well established that proceedings under FECA are not adversarial in nature, nor is
OWCP a disinterested arbiter. While the claimant has the burden of proof to establish entitlement
to compensation, OWCP shares the responsibility in the development of the evidence to see that
justice is done.2 Once it undertakes development of the record, it must do a complete job in
procuring medical evidence that will resolve the relevant issues in the case.3 As Dr. Kimura’s
2

S.S., Docket No. 18-0397 (issued January 15, 2019); D.G., Docket No. 15-0702 (issued August 27, 2015);
Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J. Cantrell, 34 ECAB 1233, 1237 (1983).
3

S.S., id.; Richard F. Williams, 55 ECAB 343, 346 (2004).

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second opinion reports were generally supportive of expansion of the acceptance of appellant’s
claim and found that appellant was disabled due to the accepted employment injury, OWCP should
have requested that the DMA also review his reports, prior to denying appellant’s request for
expansion of her claim, surgical authorization, and additional disability due to conditions
Dr. Kimura had opined were causally related to the accepted employment injury.4
For this reason, the case will be remanded to OWCP for further development with regard
to the issues of expansion, disability, and denial of surgical authorization. After such further
development as is deemed necessary, OWCP shall issue a de novo decision.
IT IS HEREBY ORDERED THAT the March 18, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: July 7, 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

4

See id.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.W., Appellant
and
U.S. POSTAL SERVICE, EXPRESS MAIL
UNIT, New York, NY, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-772
Issued: June 13, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JURISDICTION
On February 23, 2012 appellant, through his attorney, filed a timely appeal of a
November 23, 2011 Office of Workers’ Compensation Programs’ (OWCP) merit decision
denying a schedule award. 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 the case.
ISSUE
The issue is whether appellant has permanent impairment of his left lower extremity
causally related to an April 18, 2003 employment injury, thereby entitling him to a schedule
award.
On appeal counsel argued that Dr. Edward B. Krisiloff, a Board-certified orthopedic
surgeon, was not appropriately selected under the Physicians Directory System (PDS) to serve as
an impartial medical examiner. Counsel further argued that the statement of accepted facts
presented to Dr. Krisiloff was not complete as it did not include appellant’s prior back injuries
and that Dr. Krisiloff’s report was not entitled to the weight of the medical evidence.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 25, 2003 appellant, then a 61-year-old clerk, filed a traumatic injury claim
alleging that he injured his back while lifting a parcel on April 18, 2003 in the performance of
duty. His attending physician noted that appellant had a similar episode of back pain in 1988 and
stated that he had a sciatic nerve irritation in his lower back. OWCP accepted this claim for
aggravation of sciatic nerve on June 12, 2003. Appellant returned to light-duty work eight hours
a day on May 12, 2003. A magnetic resonance imaging (MRI) scan dated September 11, 2003
demonstrated a very mild Grade 1/4 anterolisthesis of L3 on L4 without lysis with bilateral facet
degeneration and mild disc bulges from L3 to S1. Appellant underwent x-rays on December 14,
2006 which demonstrated mild Grade 1/4 anterolisthesis of L3 on L4. He underwent a second
MRI scan which found no gross interval change with no herniation or foraminal stenosis.
Appellant filed a recurrence of disability claim on June 14, 2007 which OWCP accepted on
September 13, 2007.
Appellant filed a request for a schedule award on March 4, 2010. In support of his claim,
he submitted a report dated February 2, 2009 from Dr. Arthur Becan, an orthopedic surgeon,
who noted appellant’s radicular left extremity pain. Dr. Becan stated that appellant had an
antalgic gait and was unable to heel or toe walk. He found a sensory deficit over the L5 and S1
dermatome on the right as well as total loss of the left Achilles reflex on the left and decreased
reflex in the right Achilles. Dr. Becan reported loss of muscle strength on manual muscle testing
in right gastrocnemius of 4/5 on the right and 3/5 on the left. He also found loss of hamstring
and quadriceps strength on the left of 4/5. Appellant did not have any calf atrophy. Dr. Becan
diagnosed chronic post-traumatic lumbar strain and sprain, herniated disc L3-4, anterolisthesis
with spinal instability L4 over L5, discogenic disease of the lumbar spine and left lumbar
radiculopathy. He provided an impairment rating finding that, under the A.M.A., Guides,
appellant had class 1 severe sensory deficit of the L5 and S1 nerve root (sciatic), 12 percent
impairment.2 Dr. Becan found grade modifiers for functional history of three,3 clinical studies of
three4 and a net adjustment of four. He opined that appellant had a left lower extremity
impairment of 14 percent. Dr. Becan also provided an impairment rating based on motor
strength deficit. He found that appellant had class 3 severe 2/5 motor strength deficit in the left
extensor halluces longus (sciatic) equaling 47 percent. Dr. Becan awarded functional history
modifier of three, clinical studies modifier of three and a net adjustment of four resulting in the
left lower extremity impairment of 49 percent. He found class 1 4/5 motor strength deficit in
appellant’s left quadriceps (femoral) noting that the default impairment was five percent.
Dr. Becan awarded functional history and clinical studies modifiers of three and a net adjustment
of four to reach a left lower extremity impairment rating of nine percent. He concluded that
appellant had 60 percent impairment of his left lower extremity.
Dr. Becan evaluated appellant’s right lower extremity and found a class 1 moderate
sensory deficit of the right L5 and S1 nerve roots (sciatic) with a default impairment of four
2

A.M.A., Guides 535, Table 16-12.

3

Id. at 516, Table 16-6.

4

Id. at 519, Table 16-8.

2

percent. He found functional history modifiers of three and clinical studies modifiers of three to
reach a net adjustment of four and a final right lower extremity impairment of nine percent. In
regard to appellant’s motor strength deficit of the right quadriceps/extensor halluces longus
(sciatic), Dr. Becan found that the diagnosis had a default rating of nine percent for a class 1,
mild 4/5 deficit. He found functional history and clinical studies modifiers of three and a net
adjustment of four to reach 13 percent impairment of the right lower extremity. Dr. Becan found
a total right lower extremity impairment of 21 percent. He opined that appellant reached
maximum medical improvement on February 2, 2009.
OWCP’s medical adviser reviewed Dr. Becan’s report on April 18, 2010 and found that
quadriceps impairment was based on the L3 nerve root. He also noted that appellant’s medical
history did not support significant motor deficits to the left lower extremity. The medical adviser
recommended further development of the medical evidence.
Due to the disagreement between Dr. Becan and OWCP’s medical adviser regarding the
appropriate nerve and extent of appellant’s permanent impairment, on June 23, 2010 OWCP
determined that there was a conflict of medical evidence requiring referral to an impartial
medical examiner. The record contains an iFECS Report: MEO23 -- Appointment Schedule
Notification (MEO23) indicating that Dr. Krisiloff was selected as impartial medical adviser, an
RME referral form selecting Dr. Krisiloff, to serve as the impartial medical examiner and
indicating that he was selected through the PDS. The record further contains screen captures of
bypass history of other Board-certified orthopedic surgeons, listing Dr. Kenneth Klein, bypassed
due to lack of a current telephone number, Dr. Cornelius Stover, Dr. David Tam and Dr. Lewis
Zemask, bypassed because the physicians did not accept OWCP cases.
OWCP referred appellant, a statement of accepted facts and a list of specific questions to
Dr. Krisiloff to determine appellant’s permanent impairment due to his accepted back injury. In
a report dated June 30, 2010, Dr. Krisiloff described appellant’s history of injury based on the
statement of accepted facts. He performed a physical examination and found no hard neurologic
findings. Dr. Krisiloff stated, “The motor examination reveals some breakaway weakness that is
likely secondary to pain and is not a true neurologic finding. The patient also complains of some
decreased sensation, but a careful examination shows that it follows no anatomic dermatomal
distribution and is therefore not a reliable finding.” He diagnosed degenerative lumbar disc
disease and radiculopathy in the left leg without neurological compromise. Dr. Krisiloff stated
that there was no basis for significant neurologic compromise based on appellant’s MRI scans.
He applied the A.M.A., Guides and found that under the Lumbar Spine Regional Grid appellant
had a class 2 Intervertebral Disc Herniation with residual radiculopathy with a default
impairment of 12 percent.5 Dr. Krisiloff found a functional history grade modifier of two,6
physical examination modifier of zero,7 clinical studies grade modifier two,8 to reach a net
adjustment of zero. He found that appellant had reached maximum medical improvement.
5

Id. at 570.

6

Id. at 575, Table 17-6.

7

Id. at 576, Table 17-7.

8

Id. at 581, Table 17-9.

3

Dr. Krisiloff concluded, “[appellant] did not exhibit any hard neurologic findings in the lower
extremities on my examination. Therefore, he has no permanent neurologic residuals as a result
of his condition.”
OWCP’s medical adviser reviewed Dr. Krisiloff’s report on October 5, 2010 and noted
that he had granted appellant an award for whole person impairment. He noted that Dr. Krisiloff
was required instead to use the peripheral nerve impairment tables, if he found objective
neurological deficits. The medical adviser requested a supplemental report addressing these
issues.
Appellant’s attending physician, Dr. Edward S. Rachlin, a Board-certified orthopedic
surgeon, completed a note on November 16, 2010 reporting appellant’s low back pain radiating
into his left leg. He noted that appellant walked with a shuffling gait and was unable to walk on
his heels or toes. Dr. Rachlin reported decreased sensation in left L2 to S1 in the left lower
extremity. He also noted a “let go” type of weakness in the left lower extremity.
On April 29, 2011 OWCP requested a supplemental report from Dr. Krisiloff. He
responded on June 14, 2011 and opined that appellant reached maximum medical improvement
in July 2003. Dr. Krisiloff stated that appellant had continued issues with his lower back and left
leg, but they were related to his underlying degenerative disc disease and not the employment
injury of April 18, 2003. He found that appellant had no objective neurologic deficits in the
lower extremities and that the peripheral nerve impairment table for residual radiculopathy could
not be used. Dr. Krisiloff stated, “[l]eft lower extremity impairment would therefore, be zero.”
By decision dated June 27, 2011, OWCP denied appellant’s claim for a schedule award
on the grounds that the weight of the medical evidence did not establish an impairment of a
scheduled member. Counsel requested an oral hearing before an OWCP hearing representative
on June 30, 2011.
In a report dated September 19, 2011, Dr. Becan reviewed Dr. Krisiloff’s report noting no
hard neurologic findings, breakaway weakness and decreased sensation without anatomic
dermatomal distribution. He stated that Dr. Krisiloff did not perform Semmes Weinstein
Monofilament testing and that motor strength deficits were not graded. Dr. Becan stated that he
found positive findings on examination on February 2, 2009.
Appellant testified at the oral hearing on October 12, 2011. He stated that his current
condition included sharp pains in his back radiating to his leg and pins and needle sensation in
his left leg and foot. Appellant also testified that his left leg was weak. He stated that
Dr. Krisiloff did not perform a thorough examination. Counsel argued that Dr. Krisiloff was not
properly selected as the impartial medical examiner and that the statement of accepted facts
provided to Dr. Krisiloff was inadequate as it did not discuss appellant’s previous back injuries.
By decision dated November 23, 2011, the hearing representative affirmed OWCP’s
finding that appellant had no permanent impairment of the left lower extremity. He remanded
the case for additional development regarding any permanent impairment of appellant’s right
lower extremity.

4

LEGAL PRECEDENT
The schedule award provision of FECA9 and its implementing regulations10 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss of 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 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.11
When there are opposing reports of virtually equal weight and rationale, the case will be
referred to an impartial medical specialist pursuant to section 8123(a) of FECA which provides
that, if there is disagreement between the physician making the examination for the United States
and the physician of the employee, the Secretary shall appoint a third physician who shall make
an examination and resolve the conflict of medical evidence.12 This is called a referee
examination and OWCP will select a physician who is qualified in the appropriate specialty and
who has no prior connection with the case.13
A physician selected by OWCP to serve as an impartial medical specialist should be
wholly free to make a completely independent evaluation and judgment. To achieve this, OWCP
has developed specific procedures for the selection of impartial medical specialists designed to
provide safeguards against any possible appearance that the selected physician’s opinion is
biased or prejudiced. The procedures contemplate that impartial medical specialists will be
selected from Board-certified specialists in the appropriate geographical area on a strict rotating
basis in order to negate any appearance that preferential treatment exists between a particular
physician and OWCP.14 FECA provides that the selection of referee physicians (impartial
medical specialists) is made through a strict rotational system using appropriate medical
directories.15 The Board has held that an appropriate notation should be made in the Directory

9

5 U.S.C. §§ 8101-8193, 8107.

10

20 C.F.R. § 10.404.

11

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.6a (January 2010); Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
12

5 U.S.C. §§ 8101-8193, 8123; B.C., 58 ECAB 111 (2006); M.S., 58 ECAB 328 (2007).

13

R.C., 58 ECAB 238 (2006).

14

B.P., Docket No. 08-1457 (issued February 2, 2009).

15

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4b (May 2003).

5

when a specialist indicates his or her unwillingness to accept a case or when, for other valid
reasons it is not advisable or practicable to use his or her services.16
ANALYSIS
OWCP determined that a conflict arose between OWCP’s medical adviser and
appellant’s physician, Dr. Becan, as to the extent of the permanent impairment to appellant’s
lower extremities as a result of his accepted back injury. Dr. Becan concluded that appellant had
60 percent impairment of his left lower extremity due to his accepted back injury including 13
percent impairment due to motor strength impairment. OWCP’s medical adviser reviewed the
medical evidence in the record and found that appellant’s medical history did not support
significant motor deficits to the left lower extremity. In order to resolve the existing conflict of
medical opinion evidence, the Board finds that OWCP properly referred appellant to
Dr. Krisiloff, a Board-certified orthopedic surgeon, for an impartial medical examination.
On June 30, 2010 Dr. Krisiloff reviewed the statement of accepted facts and performed a
physical examination. He reported no hard neurologic findings noting breakaway weakness that
was likely due to pain rather than a true neurologic finding. Dr. Krisiloff found that appellant’s
reports of decreased sensation did not follow an anatomic dermatomal distribution and were
unreliable. He diagnosed degenerative lumbar disc disease and radiculopathy in the left leg
without neurological compromise. Dr. Krisiloff concluded, “[appellant] did not exhibit any hard
neurologic findings in the lower extremities on my examination. Therefore, he has no permanent
neurologic residuals as a result of his condition.” In a supplemental report dated June 14, 2011,
Dr. Krisiloff opined that appellant had no objective neurologic deficits in the lower extremities
and that the peripheral nerve impairment table for residual radiculopathy could not be used. He
concluded, “Left lower extremity impairment would therefore, be zero.”
The Board finds that Dr. Krisiloff’s reports are based on a proper factual background and
include detailed physical findings as a basis for his conclusion that appellant had no impairment
of the left lower extremity. He stated that there were no appropriate physical findings to
correlate with the applicable tables of the A.M.A., Guides. These reports are entitled to the
weight of the medical evidence due to the physical findings and the medical reasoning offered
for the conclusion that appellant had no permanent impairment of the left lower extremity.
Following Dr. Krisiloff’s initial report, Dr. Rachlin examined appellant on November 10,
2010 and found decreased sensation in left L2 to S1 in the left lower extremity as well as
weakness in the left lower extremity. This report is not sufficient to establish a permanent
impairment or to create a conflict with Dr. Krisiloff’s reports as Dr. Rachlin did not correlate his
findings with the A.M.A., Guides.
Dr. Becan submitted an additional report dated September 19, 2011 stating that he
disagreed with Dr. Krisiloff and noting that he found positive findings on examination on
February 2, 2009. This report does not include a correlation between Dr. Becan’s findings and
the A.M.A., Guides. Furthermore, as Dr. Becan was on one side of the conflict that Dr. Krisiloff
16

David Peisner, 39 ECAB 1167 (1988).

6

resolved, the additional report from Dr. Becan is insufficient to overcome the weight accorded
Dr. Krisiloff’s report as the impartial medical specialist or to create a new conflict with it.17
On appeal, counsel argued that the record lacked evidence that Dr. Krisiloff was properly
selected through the PDS rotational system. The record establishes that Dr. Krisiloff was
selected through the PDS. The record contains screen shots of the selected physicians and the
reasons for by passes. The record establishes that Dr. Klein was bypassed because OWCP could
not ascertain his active telephone number. Drs. Stover, Tam and Zemasky were bypassed as the
physicians did not accept OWCP cases. The Board has placed great importance on the
appearance as well as the fact of impartiality and only if the selection procedures which were
designed to achieve this result are scrupulously followed may the selected physician carry the
special weight accorded to an impartial specialist. As OWCP has met its affirmative obligation
to establish that it properly followed its selection procedures, the Board finds that the attorney’s
argument is not substantiated.18
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing a
permanent impairment of his left lower extremity entitling him to a schedule award.

17

Dorothy Sidwell, 41 ECAB 857, 874 (1990).

18

K.S., Docket No. 12-184 (issued September 11, 2012).
See E.M., Docket No. 11-1373 (issued
February 3, 2012). Cf. H.W., Docket No. 10-404 (issued September 28, 2011) (where the MEO23 iFECS report was
the only documentation of the scheduled impartial medical specialist examination. There were no screen shots
substantiating the selection of the impartial medical specialist. The Board remanded the case by an order for
selection of another impartial medical specialist and the issuance of an appropriate decision following any further
development).

7

ORDER
IT IS HEREBY ORDERED THAT November 23, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 13, 2013
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Surfside, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Joanne M. Wright, for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0540
Issued: November 9, 2021

Case Submitted on the Record

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

JURISDICTION
On February 26, 2021 appellant, through his representative, filed a timely appeal from a
December 28, 2020 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). The last merit decision in this case was a Board decision dated April 9, 2019, which
became final after 30 days of issuance, and is not subject to further review. 2 As there was no merit
decision issued by OWCP within 180 days of the filing of this appeal, pursuant to the Federal
Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not
have jurisdiction over the merits of this case.
1

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

20 C.F.R. § 501.6(d).

3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim, finding that it was untimely filed and failed to demonstrate clear evidence of
error.
FACTUAL HISTORY
This case has previously been before the Board. 4 The facts and circumstances of the case
as set forth in the Board’s prior decisions are incorporated herein by reference. The relevant facts
are as follows.
On June 29, 2015 appellant, then a 58-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that he sustained a right shoulder condition in the form of a rotator
cuff tear due to performing his work duties as a letter carrier. 5 He indicated that he had engaged
in repetitive motions of casing mail, reaching, and lifting on a daily basis for the past 33¾ years
while working as a letter carrier. Appellant advised that he first reported his right shoulder pain
when he previously ﬁled a separate claim for an alleged August 18, 2007 right shoulder injury
under OWCP File No. xxxxxx964,6 and indicated that he continued to experience right shoulder
pain consistent with a right rotator cuff tear when casing mail, lifting, and otherwise reaching out
with his arms. He noted that he first became aware of the claimed condition on August 18, 2007
and April 16, 2015 and first realized its relation to his federal employment on August 18, 2007 and
May 6, 2015. Appellant stopped work on May 5, 2015.
In support of his claim, appellant submitted a report dated July 29, 2013 from Dr. Alex M.
Lam, a Board-certified internist and rheumatologist, who diagnosed diffuse arthralgia and primary
localized osteoarthritis. In a September 9, 2013 report, Dr. Hugh Fonesca, a Board-certified
internist and rheumatologist, diagnosed diffuse arthralgia, primary localized osteoarthritis,
sarcoidosis, Crohn’s disease, synovitis, and tenosynovitis. In a March 27, 2015 report, Dr. Marc Z.
Hammerman, a Board-certified orthopedic surgeon, advised that appellant presented complaining
of having right shoulder pain for an unspecified period. He diagnosed right rotator cuff
tendinitis/bursitis in the shoulder region, scapular elastofibroma of the right shoulder, with possible
tear, as seen on prior diagnostic testing, and degeneration of cervical intervertebral disc.
Appellant also submitted August 20, 2007 and April 10, 2015 magnetic resonance imaging
(MRI) scans of his right shoulder.
Appellant also submitted a May 6, 2015 report indicating that Dr. Hammerman performed
unauthorized right shoulder surgery on that date, including rotator cuff repair involving the

4

Docket No. 17-1536 (issued December 5, 2017); Docket No. 18-1778 (issued April 9, 2019).

5

OWCP assigned the present claim OWCP File No. xxxxxx065.

The Board notes that appellant’s prior claim for an August 18, 2007 right shoulder injury was denied under OWCP
File No. xxxxxx964 and is not the subject of the present appeal.
6

2

supraspinatus muscle, acromioplasty, resection of the distal clavicle, subacromial bursectomy, and
arthroscopic labral debridement.
In an August 14, 2015 report, Dr. Hammerman discussed the findings of the April 10, 2015
MRI scan and indicated that, considering appellant’s 33 years of engaging in repetitive motion as
a letter carrier, it was within all reasonable medical probability that there was a causal relationship
between his letter carrier duties and the clinical findings.
By decision dated January 26, 2016, OWCP denied appellant’s claim for a work-related
occupational right shoulder condition, finding that he had not submitted sufficient medical
evidence to establish causal relationship between a diagnosed medical condition and the accepted
employment factors, i.e., his letter carrier duties, which included casing mail, carrying a mailbag,
delivering mail, and pushing mail gurneys.
On May 6, 2016 appellant requested reconsideration of the January 26, 2016 decision and
he submitted a May 4, 2016 report from Dr. Hammerman who provided a discussion of his work
duties and the results of right shoulder MRI scans. Dr. Hammerman opined that, considering
appellant’s 34 years of employment as a letter carrier with the employing establishment, which
required a great deal of repetitive motions including lifting tubs and trays of mail and repetitive
motion of reaching above shoulder height to case mall, it was within all reasonable medical
probability there was a causal relationship between his letter carrier duties and the clinical findings.
By decision dated June 2, 2016, OWCP denied modification of the January 26, 2016
decision.
On March 28, 2017 appellant, through his representative, requested reconsideration of the
June 2, 2016 decision. He submitted a March 20, 2017 report from Dr. Martin E. Hale, an
attending Board-certified orthopedic surgeon, who indicated that his continued work with
overhead reaching for casing, as well as repetitive reaching and twisting of his arm during the
delivery portion of his route, “are significantly contributing to his continuing shoulder problems.”
By decision dated June 16, 2017, OWCP denied modification of its June 2, 2016 decision.
On August 2, 2016 appellant, through his representative, requested reconsideration of the
January 26, 2016 decision and presented additional argument. By decision dated December 20,
2016, OWCP denied appellant’s request for reconsideration of the merits of his claim pursuant to
5 U.S.C. § 8128(a).
Appellant appealed to the Board and, by decision dated December 5, 2017,7 the Board
affirmed OWCP’s June 16, 2017 decision.
On June 26, 2018 appellant, through his representative, requested reconsideration of the
June 16, 2017 decision and submitted a March 1, 2018 report from Dr. Hammerman who noted
that appellant’s physical findings were consistent with the work activities of reaching above
shoulder height, lifting 25- to 30-pound tubs, and casing mail. He opined that the findings of an
April 10, 2015 MRI scan of the right shoulder were consistent with the history of the overuse
7

Supra note 4.

3

syndrome. Dr. Hammerman noted, “[i]n view of there not being any other history of trauma to the
shoulder, and in view of the nature of his work activities resulting in the overuse of his right
dominant upper extremity, I find the correlation of his work overuse activities, to the right shoulder
pathology, as a causative factor, to be quite consistent.”
By decision dated September 20, 2018, OWCP denied appellant’s claim for an
employment-related right shoulder condition. Appellant, through his representative, appealed to
the Board and, by decision dated April 9, 2019,8 the Board affirmed OWCP’s September 20, 2018
decision.
On December 10, 2020 appellant, through his representative, requested reconsideration of
his claim.
Appellant submitted an undated report from Dr. Fernando Jimenez, a Board-certified
internist, who discussed his work duties and the history of his complaints of right shoulder
symptoms. Dr. Jimenez noted that he examined appellant on June 25, 2020 at which time he
reported that he had to case 250 to 700 letters and 800 to 2,000 ﬂats for five to six days per week
over the course of the past 34 years. Appellant further reported that he carried a mail pouch
weighing up to 35 pounds for approximately four or five miles per day , opened and closed mail
boxes with his right arm, and lifted, pushed, and pu lled items weighing up to 70 pounds.
Dr. Jimenez indicated that, based on the reported work duties, appellant cased approximately 2.652
million letters and 8.4 million flats over a 34-year period. He noted that the motion required to
bring a letter from the tub to the table and then into the case for sorting purposes required the use
of the bicep working in conjunction with the shoulder joint in order to grasp, pull, extend , and
rotate the letter into the slot. Dr. Jimenez advised that appellant reported suffering a slight tear of
the distal head of the right deltoid in 2007 and posited that this injury was signiﬁcant because any
interruption in the biomechanics of movement would cause further injury over time. He further
noted that, when a muscle is deﬁcient, the other muscles involved in movement would have to
compensate and, thus, become injured over time. Dr. Jimenez opined that the 2007 injury caused
further damage resulting in his surgery in 2015 and noted that every time appellant lifted his arm
past 90 degrees there was undue stress to the muscles and ligaments of the right shoulder, which
over time, caused an occupational disease. He indicated, “[f]rom 2007 until 2015 the repetitive
movement coupled with the deficient biomechanics was the direct cause of [appellant’s]
[o]ccupational [d]isease. The fact that [appellant] was injury free until 2007 and the [MRI scans]
taken approximately [seven] years apart as well as the postoperative report that utilize the
description of ‘frayed,’ ‘degenerative,’ and chronic illustrate the causative nature of this
gentleman’s injury.”
By decision dated December 28, 2020, OWCP denied appellant’s request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.

8

Id.

4

LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.9 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought. 10 Timeliness is determined by the document receipt date of
the request for reconsideration as indicated by the received date in the Integrated Federal
Employees’ Compensation System (IFECS).11 Imposition of this one-year filing limitation does
not constitute an abuse of discretion. 12
OWCP may not deny a reconsideration request solely because it was untimely filed. When
a claimant’s request for reconsideration is untimely filed, it must nevertheless undertake a limited
review to determine whether it demonstrates clear evidence of error. 13 If an application
demonstrates clear evidence of error, OWCP will reopen the case for merit review. 14
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. 15 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. 16 Evidence that does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error. 17 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. 18 To demonstrate clear evidence
of error, the evidence submitted must be of sufficient probative value to shift the weight of the

9

5 U.S.C. § 8128(a); see also A.B., Docket No. 19-1539 (issued January 27, 2020); W.C., 59 ECAB 372 (2008).

10

20 C.F.R. § 10.607(a).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (September 2020).

12

G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
13

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB
499 (1990).
14

L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also 20 C.F.R. § 10.607(b); supra note 11 at Chapter 2.1602.5 (September 2020).
15

A.A., Docket No. 19-1219 (issued December 10, 2019); J.F., Docket No. 18-1802 (issued May 20, 2019); J.D.,
Docket No. 16-1767 (issued January 12, 2017); Dean D. Beets, 43 ECAB 1153 (1992).
16

J.D., Docket No. 19-1836 (issued April 6, 2020); Leone N. Travis, 43 ECAB 227 (1999).

17

S.W., Docket No. 18-0126 (issued May 14, 2019); Robert G. Burns, 57 ECAB 657 (2006).

18

T.N., Docket No. 18-1613 (issued April 29, 2020).

5

evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s
decision.19
OWCP’s procedures note that the term clear evidence of error is intend ed to represent a
difficult standard. 20 The claimant must present evidence which on its face shows that OWCP made
an error.21 Evidence such as a detailed, well-rationalized medical report, which if submitted before
the denial was issued, would have created a conflict in medical opinion requiring further
development, is not clear evidence of error. 22 The Board makes an independent determination of
whether a claimant has demonstrated clear evidence of error on the part of OWCP. 23
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed.
As noted above, a request for reconsideration must be received within one year of the date
of the last merit decision for which review is sought. 24 As appellant’s request for reconsideration
was not received by OWCP until December 10, 2020, more than one year after issuance of the last
merit decision, i.e., the Board’s April 9, 2019 decision, it was untimely filed. 25 Consequently, he
must demonstrate clear evidence of error by OWCP in its September 20, 2018 decision.
The Board further finds that appellant has not demonstrated clear evidence of error. The
representative argued that the reports of Dr. Hammerman and Dr. Jimenez established appellant’s
claim for an employment-related right shoulder injury, but the representative’s own opinion on the
underlying medical issue of the case also does not raise a substantial question as to the correctness
of OWCP’s September 20, 2018 decision.26
Appellant submitted an undated report in which Dr. Jimenez opined that he had developed
an employment-related right shoulder injury due to his repetitive work duties. Dr. Jimenez
indicated, “[f]rom 2007 until 2015 the repetitive movement coupled with the deficient
biomechanics was the direct cause of [appellant’s] occupational disease. The fact that [appellant]
19

J.M., Docket No. 19-1842 (issued April 23, 2020).

20

See supra note 11 at Chapter 2.1602.5(a) (September 2020); see also J.S., Docket No. 16-1240 (issued
December 1, 2016).
21

K.W., Docket No. 19-1808 (issued April 2, 2020).

22

Id.

23

D.S., Docket No. 17-0407 (issued May 24, 2017).

24

See supra note 14.

25

According to OWCP’s procedures, the one-year period for requesting reconsideration begins on the date of the
original OWCP decision, but the right to reconsideration within one year also accompanies any subsequent merit decision
on the issues, including any merit decision by the Board. See supra note 11 at Chapter 2.1602.4a (September 2020).
26

See supra notes 21 and 23.

6

was injury free until 2007 and the [MRI scans] taken approximately [seven] years apart as well as
the postoperative report that utilize the description of ‘frayed,’ ‘degenerative,’ and chronic
illustrate the causative nature of this gentleman’s injury.” The Board notes, however, that the
submission of this report does not establish clear evidence of error in OWCP’s September 20, 2018
decision. Dr. Jimenez’ report mostly implicated a claimed August 18, 2007 injury, previously
denied under a separate OWCP file, which is not the subject of the present case, and Dr. Jimenez
failed to explain why the degenerative right shoulder condition observed on diagnostic testing was
not the result of the natural progression of a nonwork-related degenerative condition. Therefore,
Dr. Jimenez’ report would not tend to raise a substantial question concerning the correctness of
OWCP’s September 20, 2018 decision.
As noted, clear evidence of error is intended to represent a difficult standard. 27 Even a
detailed, well-rationalized medical report, which if submitted before the denial was issued, would
have created a conflict in medical evidence requiring further development is insufficient to
demonstrate clear evidence of error. It is not enough to show that evidence could be construed so
as to produce a contrary conclusion. Instead, the evidence must shift the weight in appellant’s
favor.28 Appellant has not met this standard in the present case.
The Board finds that appellant’s request for reconsideration does not demonstrate on its
face that OWCP committed error when it found in its September 20, 2018 decision that he had not
established an employment-related right shoulder injury. 29 Therefore, OWCP properly determined
that appellant did not demonstrate clear evidence of error in its September 20, 2018 decision.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.

27

See supra note 24.

28

M.E., Docket No. 18-1442 (issued April 22, 2019).

29

See S.F., Docket No. 09-0270 (issued August 26, 2009).

7

ORDER
IT IS HEREBY ORDERED THAT the December 28, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 9, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
COMMISSARY AGENCY, SCOTT AIR FORCE
BASE, IL, Employer
__________________________________________

)
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)
)
)
)
)
)
)

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

Docket No. 17-1465
Issued: September 25, 2019

Case Submitted on the Record

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

JURISDICTION
On May 1, 2017 appellant, through counsel, filed a timely appeal from a March 2, 2017
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has established greater than two percent permanent
impairment of the right upper extremity for which he previously received a schedule award.
FACTUAL HISTORY
On October 18, 2013 appellant, then a 62-year-old store associate, filed an occupational
disease claim (Form CA-2) alleging that his duties as a cashier caused his bilateral carpal tunnel
condition after he returned to work following his December 4, 2009 back, neck, and shoulder
injury. He stopped work on October 18, 2013.3 OWCP accepted the claim for bilateral carpal
tunnel syndrome and. It subsequently expanded the acceptance of the claim to include right index
trigger finger (acquired). OWCP authorized surgery for right carpal tunnel release and right trigger
finger release, which was performed on April 16, 2014.
On November 6, 2014 appellant filed a claim for a schedule award (Form CA-7).
In support of his schedule award claim, appellant submitted a November 20, 2014 report
from Dr. Neil Allen, a Board-certified internist and neurologist. Dr. Allen briefly noted
appellant’s medical and employment history and diagnosed bilateral carpal tunnel syndrome and
right acquired trigger finger. A physical examination revealed: no atrophy in either wrist; right
tenderness in distal carpal row and carpal tunnel region; left tenderness on the distal row palmar
surface; and negative Phalen’s and Tinel’s signs bilaterally. Regarding muscle strength, Dr. Allen
related that appellant was rated 5/5 for flexion, extension, radial deviation and ulnar deviation.
Grip and opposition strength was 4/5. A February 14, 2011 electromyography (EMG) study
showed no evidence of cervical radiculopathy or brachial plexopathy, mild bilateral focal median
wrist neuropathy, and no bilateral focal ulnar neuropathy. Dr. Allen opined that, according to
Table15-23 of the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides),4 appellant had six percent permanent impairment of
each upper extremity due to his accepted bilateral carpal tunnel syndrome. He explained that the
rating was based on a QuickDASH disability score of 71 percent, a grade modifier of 1 for test
findings of conduction delay, a grade modifier of 1 for history of mild intermittent symptoms, and
a grade modifier of 3 for physical findings of weakness.
On March 20, 2015 Dr. Michael Hellman, an orthopedic surgeon serving as an OWCP
district medical adviser (DMA) reviewed Dr. Allen’s impairment rating and opined that it was “too
high” and inconsistent with previous findings of record. He recommended that appellant be

3
Appellant has a prior traumatic injury claim under OWCP File No. xxxxxx238 which OWCP accepted for cervical
radiculitis, thoracic sprain, lumbar sprain, and shoulder pain. He was receiving wage-loss compensation for
intermittent disability on the supplemental rolls under OWCP File No. xxxxxx238 when the present occupational
disease claim was filed. On November 25, 2013 OWCP granted appellant a schedule award under that claim for two
percent permanent impairment of the left upper extremity. By decision dated December 27, 2017, the Board affirmed
the hearing representative’s decision which affirmed the left upper extremity schedule award. Docket No. 17-1116
(issued December 27, 2017). Appellant’s claims have not been administratively combined by OWCP.
4

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

2

referred for a second opinion evaluation. The DMA determined the date of maximum medical
improvement to be November 20, 2014.
On December 8, 2015 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and the medical record, to Dr. James Stiehl, a Board-certified orthopedic surgeon, for a
second opinion evaluation in order to determine whether he sustained permanent impairment of
his accepted bilateral carpal tunnel syndrome and right trigger finger condition in accordance with
the A.M.A., Guides.
In an impairment evaluation dated January 20, 2016, Dr. Stiehl reviewed appellant’s
history of injury, and the medical evidence including the February 14, 2011 EMG study. He noted
that the February 14, 2011 EMG study showed a motor nerve conduction latency of 4.5 minutes
in the left median nerve and 4.2 minutes sensory delay in the right wrist. Physical examination
findings included negative bilateral Phalen’s and Tinel’s signs and normal bilateral wrist and
fingers range of motion. Using Table 15-23, page 449 of the sixth edition of the A.M.A., Guides
Dr. Stiehl placed appellant in grade modifier 1, with mild symptoms, which carries a default value
of two percent permanent impairment of each upper extremity. He opined that appellant reached
maximum medical improvement on July 17, 2014.
On May 3, 2016 Dr. Morley Slutsky, a Board-certified occupational medicine specialist,
acting as an OWCP DMA, reviewed the impairment ratings by both Dr. Allen and Dr. Stiehl. He
found that the EMG test findings met the A.M.A., Guides criteria for compression neuropathy
under Table 15-23, page 449. The DMA found the date of maximum medical improvement to be
January 20, 2016, the date of Dr. Stiehl’s examination. Using Table 15-23 at page 449, he rated
appellant’s right carpal tunnel syndrome. The DMA found the three grade modifiers of history,
physical findings, and test results resulted in an average grade modifier of 1. He concluded that
appellant had two percent permanent impairment of the right upper extremity. For the left upper
extremity, the DMA found a history grade modifier of 1, a grade modifier for physical findings of
0, a grade modifier for test findings of 1, which resulted in an average grade modifier of -1 or zero
impairment. He determined the date of maximum medical improvement to be January 20, 2016,
the date of Dr. Stiehl’s examination. The DMA explained that his evaluation of appellant’s left
wrist permanent impairment differed from Dr. Stiehl’s because Dr. Stiehl had not documented
more than one motion per joint, which was not consistent with the validation criteria in section
15.7 of the A.M.A., Guides, page 464. Therefore appellant was assigned a zero grade modifier for
physical examination findings.
By decision dated June 22, 2016, OWCP granted appellant a schedule award for two
percent permanent impairment of the right upper extremity.
On June 30, 2016 counsel requested a telephonic hearing before an OWCP hearing
representative, which was held on January 25, 2017.
By decision dated March 2, 2017, the hearing representative affirmed the June 22, 2016
decision.

3

LEGAL PRECEDENT
Under section 8107 of FECA5 and section 10.404 of the implementing federal regulations,6
schedule awards are payable for permanent impairment of specified body members, functions or
organs. FECA, however, does not specify the manner in which the percentage of impairment shall
be determined. For consistent results and to ensure equal justice under the law for all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.7
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).8 Under the sixth edition, the evaluator identifies the impairment class of
diagnosis (CDX) condition, which is then adjusted by grade modifiers based on functional history
(GMFH), physical examination (GMPE), and clinical studies (GMCS).9 The net adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).10
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.11 In
Table 15-23, grade modifier levels (ranging from zero to four) are described for the categories test
findings, history, and physical findings. The grade modifier levels are averaged to arrive at the
appropriate overall grade modifier level and to identify a default rating value. The default rating
value may be modified up or down by one percent based on functional scale, an assessment of
impact on daily living activities.12
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with an OWCP medical adviser
providing rationale for the percentage of impairment specified.13

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

D.J., 59 ECAB 620 (2008); Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

8

A.M.A., Guides (6th ed., 2009), page 3, section 1.3, The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.
9

Id. at 383-419.

10

Id. at 411.

11

Id. at 449.

12

Id. at 448-49.

13
See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013). See C.K., Docket No. 09-2371 (issued August 18, 2010); Frantz Ghassan, 57
ECAB 349 (2006).

4

ANALYSIS
The Board finds that appellant has not established greater than two percent permanent
impairment of the right upper extremity, for which he previously received a schedule award.
Dr. Allen, an examining Board-certified internist and neurologist determined that appellant
had a six percent impairment of each upper extremity due to his accepted bilateral carpal tunnel
syndrome. He assigned a grade modifier of 1 for test findings of conduction delay, a grade
modifier of 1 for mild intermittent symptoms, and a grade modifier of 3 for physical findings of
weakness. On March 20, 2015 the DMA reviewed Dr. Allen’s report and determined that it was
of limited probative value as it was inconsistent with previous medical findings. The Board notes
that, while Dr. Allen assigned a grade modifier of 3 for weakness of both wrists, he did not
document significant weakness. Dr. Allen related that regarding muscle strength appellant was
5/5 for flexion, extension, radial and ulnar deviation, and 4/5 for grip and opposition strength. To
be of probative value, the medical evidence must describe the impairment in sufficient detail so
that it can be visualized on review and utilized to compute the percentage of impairment in
accordance with the A.M.A., Guides.14 Dr. Allen failed to adequately explain how the A.M.A.,
Guides supported his findings of a greater impairment.15 Since Dr. Allen did not explain how
appellant’s examination findings would warrant a grade 3 modifier, his opinion is of limited
probative value.
OWCP properly referred appellant for a second opinion evaluation as Dr. Allen’s report
was of limited probative value. Dr. Stiehl, the second opinion physician determined that appellant
had two percent permanent impairment of each upper extremity due to his accepted bilateral carpal
tunnel syndrome. He noted that appellant’s motor conduction delay which would place him in
grade modifier 1 of Table 15-23 of the A.M.A., Guides. Appellant’s history of mild symptoms,
with normal physical examination findings, would result in the default rating of two percent.
Therefore he concluded that pursuant to Table 15-23 appellant had two percent permanent
impairment of each upper extremity.
The DMA determined that appellant had only two percent permanent impairment of the
right upper extremity. OWCP determined that the weight of the evidence was represented by the
opinion of the DMA.
The DMA properly applied Table 15-23, which pertains to entrapment/compression
neuropathy to evaluation of appellant’s right wrist permanent impairment. He explained that
appellant’s right wrist conduction delay and mild intermittent symptoms, with normal physical
findings placed appellant in grade 1 of this Table. The DMA concurred with Dr. Stiehl that
application of the formula for grade modifiers resulted in a total impairment value of two percent
permanent impairment of the right wrist. The Board finds that the DMA properly reviewed the
EMG/NCV testing and explained his findings with regard to history and physical examination by
reviewing the medical findings in the record and applying them to the criteria set forth in the
A.M.A., Guides.

14

See G.D., Docket No. 16-1712 (issued August 11, 2017).

15

Id.

5

The Board thus finds that well-rationalized opinions of the second opinion physician and
the DMA represent the weight of the medical evidence regarding permanent impairment of
appellant’s right wrist.16
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 established greater than two percent permanent
impairment of his right upper extremity, for which he previously received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the March 2, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: September 25, 2019
Washington, DC

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

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

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

16

Id.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, OWINGSVILLE POST )
OFFICE, Owingsville, KY, Employer
)
__________________________________________ )
C.B., Appellant

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

Docket No. 20-0031
Issued: July 27, 2020

Case Submitted on the Record

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

JURISDICTION
On October 3, 2019 appellant filed a timely appeal from a July 11, 2019 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 found that appellant received an overpayment
of compensation in the amount of $37,099.61, for which she was without fault, because she
concurrently received FECA wage-loss compensation and Social Security Administration (SSA)
age-related retirement benefits for the period May 1, 2017 through May 25, 2019; (2) whether
OWCP properly denied waiver of recovery of the overpayment; and (3) whether OWCP properly
required recovery of the overpayment by deducting $684.45 every 28 days from appellant’s
continuing compensation payments.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 19, 2016 appellant, then a 65-year-old rural letter carrier, filed a traumatic
injury claim (Form CA-1) alleging that on September 29, 2016 she felt a pop and tearing/burning
sensation in her right shoulder when unloading heavy parcels from her vehicle onto the loading
dock while in the performance of duty. She continued to work following the injury. The claim
form indicated that appellant’s retirement coverage was Federal Employees Retirement System
(FERS). OWCP accepted the claim for right shoulder rotator cuff tear. It authorized right rotator
cuff repair surgery, which occurred on December 20, 2016. OWCP paid appellant wage-loss
compensation on the supplemental rolls from December 20, 2016 through January 7, 2017 and
began receiving payments on the periodic rolls beginning January 8, 2017.
In an EN1032 form dated September 29, 2017, appellant indicated that she received SSA
age-related benefits as part of an annuity for federal service in the amount of $1,701.00 monthly.
In an EN1032 form dated September 7, 2018, she indicated that she received regular age-related
SSA checks in the amount of $1,735.00 monthly.
On September 18, 2018 OWCP provided SSA with a FERS/SSA dual benefits calculation
form.
On October 2, 2018 appellant elected FECA benefits in preference to retirement benefits
provided by the Office of Personnel Management (OPM), effective October 16, 2018.
On March 4, 2019 OWCP received a notification of personnel action (Form SF50) noting
that appellant retired from the employing establishment effective July 31, 2018. Appellant’s
retirement coverage was listed as FERS.
On April 17, 2019 SSA completed the dual benefits calculation form which indicated
appellant’s SSA benefit rates with a FERS offset and without a FERS offset from May 2017
through January 2019. Beginning May 2017, the SSA rate with FERS was $1,701.80 and without
FERS was $242.10. Beginning December 2017, the SSA rate with FERS was $1,735.80 and
without FERS was $246.90. Beginning December 2018, the SSA rate with FERS was $1,784.40
and without FERS was $253.80. Beginning January 2019, the SSA rate with FERS was $1,785.40
and without FERS was $258.30. SSA noted the date of eligibility as May 2017.
On June 3, 2019 OWCP prepared a FERS offset calculation worksheet wherein it noted
the calculation of appellant’s SSA offset overpayment from May 1, 2017 through May 25, 2019.
The total overpayment was determined to be $37, 099.61.
In a letter dated June 7, 2019, OWCP notified appellant that, based on information provided
by SSA regarding the amount her age-related retirement benefit was partially attributable to federal
service, her FECA wage-loss compensation had been adjusted.
On June 7, 2019 OWCP issued a preliminary determination finding that an overpayment
of compensation in the amount of $37,099.61 had been created. It explained that the overpayment
occurred because a portion of appellant’s SSA benefits that she received from May 1, 2017 through
May 25, 2019 were partially based on credits earned while working in the Federal Government,
and that this portion of her SSA benefit was a prohibited dual benefit. OWCP found her not at
2

fault in the creation of the overpayment and forwarded an overpayment action request form and
an overpayment recovery questionnaire (Form OWCP-20). It requested that appellant provide
supporting documentation including income tax returns, bank account statements, bills and
cancelled checks, pay slips, and any other records which supported income and expenses listed.
OWCP afforded her 30 days to respond.
On June 24, 2019 appellant requested a decision based upon the written evidence regarding
possible waiver of recovery of her overpayment.
In a June 24, 2019 Form OWCP-20, appellant indicated that her total monthly income
included $2,737.80 from OWCP, $2,657.00 in SSA benefits for both herself and her husband, and
$1,146.00 in other benefits her husband receives, resulting in a total monthly income of $6,530.80.
She listed her husband as a dependent and indicated that her total monthly expenses included
$229.20 for rent or mortgage. Her bi-monthly expenses included $1,884.09 for groceries, $713.07
for restaurants, $374.63 for clothing, $418.07 for Lowes, $2,136.96 for utilities, and miscellaneous
expenses of $5,180.15. The total for monthly and bi-monthly expenses totaled $10,936.17. Other
monthly debts included $905.21 for a car loan, $766.57 for a tractor loan, and $235.55 for a mower,
resulting in a total of $2,162.30. Appellant indicated that her funds included $75.00 cash on hand,
a balance of $37,057.55 in a checking account, a balance of $1,090.50 in a savings account, and
retirement funds of $351,268.79, resulting in total funds of $389,491.84. She attached financial
documentation of her expenses and income.
By decision dated July 11, 2019, OWCP finalized the June 7, 2019 preliminary
determination that appellant had received an overpayment of compensation in the amount of
$37,099.61 for the period May 1, 2017 through May 25, 2019 because it had failed to offset her
compensation payments by the portion of her SSA benefits that were attributable to federal service.
It further found that she was without fault in the creation of the overpayment, but denied waiver
of recovery of the overpayment because the evidence of record failed to establish that recovery of
an overpayment would defeat the purpose of FECA or would be against equity and good
conscience. OWCP noted that appellant’s liquid assets exceeded both the allowable resource base
of $10,300.00 for a household of two people and the total amount of the overpayment. It found
that it would recover the overpayment by deducting $684.45 every 28 days from her continuing
compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.2 Section 8116 limits the right of an employee to receive compensation.
While an employee is receiving compensation, he or she may not receive salary, pay, or
remuneration of any type from the United States.3

2

5 U.S.C. § 8102(a).

3

Id. at § 8116.

3

Section 10.421(d) of OWCP’s implementing regulations requires that it reduce the amount
of compensation by the amount of SSA benefits that are attributable to the federal service of the
employee.4 FECA Bulletin No. 97-09 provides that FECA benefits have to be adjusted for the
FERS portion of SSA benefits because the portion of the SSA benefit earned as a federal employee
is part of the FERS retirement package, and the receipt of FECA benefits and federal retirement
concurrently is a prohibited dual benefit.5
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $37,099.61, for which she was without fault, because she
concurrently received FECA wage-loss compensation benefits and SSA age-related retirement
benefits for the period May 1, 2017 through May 25, 2019.
The record indicates that, while appellant was receiving compensation for disability under
FECA, she was also receiving SSA age-related retirement benefits during the period at issue. A
claimant cannot receive both compensation for wage-loss and SSA age-related benefits attributable
to federal service for the same period.6 Consequently, the fact of the overpayment has been
established.
To determine the amount of the overpayment, the portion of the SSA benefits that were
attributable to federal service must be calculated. OWCP received documentation from SSA with
respect to the specific amount of SSA age-related retirement benefits that were attributable to
federal service. The SSA provided the SSA rate with FERS and without FERS for specific periods
commencing May 1, 2017 through May 25, 2019. OWCP provided its calculations for each
relevant period based on the SSA worksheet and in its June 7, 2019 preliminary overpayment
determination. No contrary evidence was provided.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period May 1, 2017 through May 25, 2019 and finds that an overpayment of compensation in the
amount of $37,099.61 was created.7 Appellant did not challenge the fact or amount of
overpayment.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA provides: “Adjustment or recovery [of an overpayment] by the
United States may not be made when incorrect payment has been made to an individual who is
4

20 C.F.R. § 10.421(d); see B.B., Docket No. 19-0822 (issued February 18, 2020); B.F., Docket No. 18-1345
(issued February 6, 2019).
5

FECA Bulletin No. 97-09 (February 3, 1997); see also M.D., Docket No. 19-1500 (issued February 24, 2020);
G.K., Docket No. 18-0243 (issued August 17, 2018).
6

See D.C., Docket No. 19-0118 (issued January 15, 2020).

7
See L.W., Docket No. 19-0787 (issued October 23, 2019); L.L., Docket No. 18-1103 (issued March 5, 2019); D.C.,
Docket No. 17-0559 (issued June 21, 2018).

4

without fault and when adjustment or recovery would defeat the purpose of this subchapter or
would be against equity and good conscience.”8
Recovery of an overpayment will defeat the purpose of FECA when such recovery would
cause hardship to a currently or formerly entitled beneficiary because the beneficiary from whom
OWCP seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP.9 An individual is deemed to need
substantially all of his or her current income to meet current ordinary and necessary living expenses
if monthly income does not exceed monthly expenses by more than $50.00.10 Also, assets must
not exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a
spouse or dependent plus $1,200.00 for each additional dependent.11 An individual’s liquid assets
include, but are not limited to cash, the value of stocks, bonds, saving accounts, mutual funds, and
certificate of deposits.12
Recovery of an overpayment is considered to be against equity and good conscience when
an individual who received an overpayment would experience severe financial hardship in
attempting to repay the debt or when an individual, in reliance on such payment or on notice that
such payments would be made, gives up a valuable right or changes his or her position for the
worse.13
OWCP regulations provide that the individual who received the overpayment is responsible
for providing information about income, expenses, and assets as specified by OWCP. This
information is needed to determine whether or not recovery of an overpayment would defeat the
purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary.14
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.

8

5 U.S.C. § 8129(b).

9

20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4(a)(2) (September 2018).
10

Id. at Chapter 6.400.4(a)(3); N.J., Docket No. 19-1170 (issued January 10, 2020); M.A., Docket No. 18-1666
(issued April 26, 2019).
11

See supra note 9 at Chapter 6.400.4(a)(2) (September 2018).

12

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

13

Id. at § 10.437(a)(b).

14

Id. at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

5

As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience.15 It considered
appellant’s financial information to determine if recovery of the overpayment would defeat the
purpose of FECA. Appellant provided her current monthly income and expenses in a Form
OWCP-20 on June 24, 2019, as well as a summary of her liquid assets. OWCP properly
determined that appellant listed available assets of $389,491.84 which included $37,057.55 in a
checking account, $1,090.55 in a savings account, and retirement savings in the amount of
$351.268.79. The evidence of record therefore established that appellant’s assets exceeded the
base asset amount of $10,300.00 for individuals with a spouse or dependent.16 It was therefore
unnecessary for OWCP to consider whether her monthly income exceeded her monthly ordinary
and necessary expenses by more than $50.00.17
Appellant also has not established that recovery of the overpayment would be against
equity and good conscience. She has not submitted evidence to substantiate that she would
experience severe financial hardship in attempting to repay the debt, or that in reliance on the
overpayment she gave up a valuable right or changed his position for the worse. Therefore, OWCP
properly found that recovery of the overpayment would not defeat the purpose of FECA or be
against equity and good conscience.18
LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA.19
Section 10.441 of OWCP’s regulations provides that, when an overpayment of
compensation has been made to an individual who is entitled to further payments, the individual
shall refund to OWCP the amount of the overpayment as soon as the error is discovered or his or
her attention is called to the same. If no refund is made, OWCP shall decrease later payments of
compensation, taking into account the probable extent of future payments, the rate of
compensation, the financial circumstances of the individual, and any other relevant factors so as
to minimize hardship.20

15

Id. at § 10.436.

16

Supra note 9.

17

Id.

18

See supra note 13.

19

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

20

Id.

6

ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$684.45 every 28 days from appellant’s continuing compensation payments.
In setting the recovery rate at $684.45 every 28 days, OWCP explained that the factors set
forth at 20 C.F.R. § 10.441(a) had been considered to minimize hardship, while liquidating the
debt, as appellant had financial resources sufficient for more than ordinary needs.21 As noted,
appellant submitted a Form OWCP-20 on June 24, 2019 showing that she had assets including
$37,057.55 as a checking account balance, $1,090.50 as a saving account balance, and retirement
savings in the amount of $351,268.79. Thus, OWCP did not abuse its discretion in setting the rate
of recovery.22 The Board therefore finds that OWCP properly required recovery of the
overpayment from appellant’s continuing compensation payments at the rate of $684.45 every 28
days.
CONCLUSION
The Board finds that OWCP properly found that appellant received an overpayment of
compensation in the amount of $37,099.61, for which she was not at fault, as she concurrently
received SSA age-related retirement benefits while receiving FECA wage-loss compensation
benefits for the period May 1, 2017 through May 25, 2019. The Board further finds that OWCP
properly denied waiver of recovery of the overpayment and properly required recovery of the
overpayment by deducting $684.45 every 28 days from her continuing compensation payments.

21
22

See R.D., Docket No. 19-0159 (issued April 17, 2020); D.S., Docket No. 18-1447 (issued July 22, 2019).
See T.G., Docket No. 17-1989 (issued June 5, 2018); M.D., Docket No. 11-1751 (issued May 7, 2012).

7

ORDER
IT IS HEREBY ORDERED THAT the July 11, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 27, 2020
Washington, DC

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

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

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

8