United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.H., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS, Camp Lejeune, NC, Employer
__________________________________________

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

Docket No. 14-2077
Issued: February 12, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 30, 2014 appellant filed a timely appeal from the September 2, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
$80,537.26 overpayment of compensation; and (2) whether it properly determined that appellant
was at fault in the creation of the overpayment of compensation, thereby precluding waiver of
recovery of the overpayment.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
OWCP accepted that on June 22, 2010 appellant, then a 49-year-old supervisory equal
employment specialist, sustained aggravation of disc protrusions at L4-5 and L5-S1 without
myelopathy due to climbing stairs at work on that date.
Appellant stopped work on June 22, 2010 and returned to limited-duty work for four
hours per day on July 8, 2010. She stopped work on November 10, 2010 and began to receive
disability compensation on the daily rolls. Appellant later received disability compensation on
the periodic rolls.
In a July 29, 2011 report, Dr. Robert M. Moore, a Board-certified orthopedic surgeon
serving as an OWCP referral physician, indicated that appellant could work for eight hours per
day with restrictions of no bending or climbing, no lifting more than 10 pounds, and no sitting
for more than four hours per workday.
On August 9, 2011 appellant returned to work for four hours per day as an equal
employment specialist supervisor. In an August 17, 2011 letter, OWCP advised her that it was
reducing her disability compensation effective August 9, 2011 based on her actual earnings of
$860.10 per week (for work of four hours per day). It stated, “If you receive an increase in pay
over the amount cited above, you should notify us of the increase immediately. Failure to do so
could cause an overpayment of compensation.”2
On September 12, 2011 appellant signed a Form EN1032 in which she certified that she
understood that she had to immediately report to OWCP any employment or employment
activity, any change in the status of claimed dependents, any third-party settlement, and any
monies or income or change in monies or income from federally assisted disability or benefit
programs.
By letter dated September 14, 2011, OWCP advised appellant that her periodic payment
of partial disability compensation would begin effective August 15, 2011 and stated:
“To minimize the possibility of an overpayment of compensation, notify this
office immediately when you go back to work. Each payment shows the period
for which payment is made. If you have worked for any portion of this period,
return the payment to this office, even if you have already advised OWCP that
you are working.”
Appellant resigned her position as a supervisory equal employment specialist at Camp
Lejeune and on January 15, 2012 she started working on a full-time basis for the employing
establishment as an equal employment manager at Robins Air Force Base.3 OWCP did not stop
paying appellant partial disability compensation for four hours per day at that time. In
2

OWCP did not issue a formal wage-earning capacity determination.

3

In early 2012 appellant requested that her mailing address of record be changed from her address in
Jacksonville, NC, to an address in Warner Robins, GA. After this point, OWCP sent its communications to
appellant’s address in Warner Robins, GA.

2

April 2014 OWCP received documents concerning the change in appellant’s job on January 15,
2012 and it stopped paying her disability compensation effective May 3, 2014.
The record contains evidence (including a Standard Form 50) showing that when
appellant started working as an equal employment manager at Robins Air Force Base effective
January 15, 2012 she began to receive pay of $95,459.00 per year. The evidence also shows that,
at the time of her June 22, 2010 work injury, appellant was earning $89,450.00 as a supervisory
equal employment specialist at Camp Lejeune. Payment records and OWCP worksheets show
that appellant received $80,537.26 in disability compensation for the period January 15, 2012 to
May 3, 2014.
In a July 30, 2014 notice, OWCP advised appellant of its preliminary determination that
she received an $80,537.26 overpayment of compensation because she received partial disability
compensation payments (for four hours per day) for the period January 15, 2012 to May 3, 2014
after she returned to full-time work without wage loss on January 15, 2012. It also made a
preliminary determination that she was at fault in the creation of the overpayment. OWCP
advised appellant that she could submit evidence challenging the fact, amount, or finding of fault
and request waiver of the overpayment. It informed appellant that she could submit additional
evidence in writing or at prerecoupment hearing, but that a prerecoupment hearing must be
requested within 30 days of the date of the written notice of overpayment. OWCP requested that
she complete and return an enclosed financial information questionnaire (Form OWCP-20)
within 30 days. In an accompanying memorandum, it provided a calculation showing that
appellant received $80,537.26 in disability compensation for the period January 15, 2012 to
May 3, 2014. OWCP indicated that various OWCP documents, including a September 14, 2011
wage-loss document and a Form EN1032 provided in September 2011 advised appellant that she
could not accept payments after a return to work without wage loss. It stated:
“On January 15, 2012 the claimant accepted a full-time position with the United
States Air Force, [Robins Air Force Base], GA, as an [e]qual [e]mployment
[m]anager.
“Per SF-50 with an effective date of January 15, 2012, it supports that the position
accepted was for full time at an annual rate of $95,459[.00]. The claimant’s
annual and effective rate was based at $89,450.[00] at the time of the injury. In
calculating the claimant’s wage-earning capacity, … it was noted a 105 percent
[wage-earning capacity] indicating that the claimant was not entitled to any
compensation on or after January 15, 201[2].”
Appellant did not respond within the allotted time. On August 27, 2014 she called
OWCP advising that she had just received its July 30, 2014 letter and to ask for an extension to
submit materials. Appellant was told that there was no indication in the record that the letter was
not properly sent to her in a timely manner.
In a September 2, 2014 decision, OWCP determined that appellant received an
$80,537.26 overpayment of compensation. It also determined that she was at fault in the creation
of the overpayment, thereby precluding waiver of recovery of the overpayment. OWCP
indicated that appellant did not respond to the July 30, 2014 preliminary determination within 30

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days4 and indicated that it was proper to find appellant at fault in the creation of the overpayment
because she accepted payments which she knew or reasonably should have known were
incorrect. It indicated that it would request payment of the full amount of the overpayment
within 30 days.5
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.6
Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, he
or she may not receive salary, pay, or remuneration of any type from the United States, except in
limited circumstances.7 OWCP’s regulations state in pertinent part: compensation for wage loss
due to disability is available only for any periods during which an employee’s work-related
medical condition prevents him or her from earning the wages earned before the work-related
injury.8
ANALYSIS -- ISSUE 1
The Board finds that appellant received an $80,537.26 overpayment of compensation for
the period January 15, 2012 to May 3, 2014. OWCP accepted that on June 22, 2010 she
sustained aggravation of disc protrusions at L4-5 and L5-S1 without myelopathy due to climbing
stairs at work on that date. After a period of total disability, appellant returned to work in
August 2011 for four hours per day as a supervisory equal employment specialist and she began
to receive partial disability compensation. She resigned her position as a supervisory equal
employment specialist at Camp Lejeune and on January 15, 2012 she started working on a fulltime basis for the employing establishment as an equal employment manager at Robins Air Force
Base. OWCP did not stop paying appellant partial disability compensation for four hours per
day at that time. The record contains evidence showing that when appellant started working as
an equal employment manager at Robins Air Force Base effective January 15, 2012 she began to
receive pay of $95,459.00 per year. The evidence also shows that, at the time of her June 22,
2010 work injury, appellant was earning $89,450.00 as a supervisory equal employment
specialist at Camp Lejeune. OWCP did not stop paying appellant partial disability compensation
4

OWCP stated, “Although we received a call asking for an extension, it is irrelevant as she did not complete and
return the [Form OWCP-20].”
5

With respect to the recovery of an overpayment, the Board’s jurisdiction is limited to those cases where OWCP
seeks recovery from continuing compensation benefits. D.R., 59 ECAB 148 (2007); Miguel A. Muniz, 54 ECAB
217 (2002). As appellant was not in receipt of continuing compensation at the time of OWCP’s overpayment
determination, the Board does not have jurisdiction over the method of recovery of the overpayment in this case.
See Lorenzo Rodriguez, 51 ECAB 295 (2000); 20 C.F.R. § 10.441.
6

5 U.S.C. § 8102.

7

Id. at § 8116(a).

8

20 C.F.R. § 10.500.

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until May 3, 2014 and payment records and OWCP worksheets show that she received
$80,537.26 in disability compensation for the period January 15, 2012 to May 3, 2014.
Appellant was not entitled to receive both a salary and partial disability wage-loss compensation
for the same period. Therefore, the $80,537.26 in compensation constituted an overpayment.9
On appeal, appellant alleged that she was unable to adequately challenge the
overpayment because she received OWCP’s July 30, 2014 preliminary overpayment notice at too
late a date to adequately respond. However, there is no evidence that OWCP’s July 30, 2014
preliminary overpayment notice was not sent to appellant’s address of record in a timely
manner.10 On August 27, 2014 appellant requested an extension to submit additional materials.
She has no right to such an extension and there is no evidence that OWCP acted improperly in
denying this request. For the above-noted reasons, the evidence shows that appellant received an
$80,537.26 overpayment of compensation.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that where an overpayment of compensation has been
made “because of an error of fact or law,” adjustment shall be made by decreasing later
payments to which an individual is entitled.11 The only exception to this requirement is a
situation which meets the tests set forth as follows in section 8129(b): “Adjustment or recovery
by the United States may not be made when incorrect payment has been made to an individual
who is without fault and when adjustment or recovery would defeat the purpose of this
subchapter or would be against equity and good conscience.”12 No waiver of payment is
possible if the claimant is not “without fault” in helping to create the overpayment.13
In determining whether an individual is not “without fault” or alternatively “at fault” in
the creation of an overpayment, section 10.433(a) of Title 20 of the Code of Federal Regulations
provide in relevant part:
“A recipient who has done any of the following will be found to be at fault with
respect to creating an overpayment:
(1) Made an incorrect statement as to a material fact which he or she
knew or should have known to be incorrect; or

9

See id.

10

In early 2012 appellant requested that her mailing address of record be changed from her address in
Jacksonville, NC, to an address in Warner Robins, GA. After this point, OWCP sent all its communications to
appellant’s current and correct address of record in Warner Robins, GA. In the absence of evidence to the contrary,
a letter properly addressed and mailed in the course of due business is presumed to have arrived at the mailing
address in due course if not returned. This is known as the mailbox rule. See, e.g., Kenneth E. Harris, 54 ECAB
502 (2003).
11

5 U.S.C. § 8129(a).

12

Id. at § 8129(b).

13

L.J., 59 ECAB 264 (2007).

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(2) Failed to provide information which he or she knew or should have
known to be material; or
(3) Accepted a payment which he or she knew or should have known to
be incorrect….”14
Section 10.433(b) of OWCP’s regulations provide:
“Whether or not OWCP determines that an individual was at fault with respect to
the creation of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those
circumstances and the individual’s capacity to realize that he or she is being
overpaid.”15
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly found that appellant was at fault in the creation of
the $80,537.26 overpayment of compensation under the third prong of the above-detailed test,
thereby precluding waiver of recovery of the overpayment.16 For the period January 15, 2012 to
May 3, 2014, appellant accepted payments which she knew or reasonably should have known
were incorrect.
The Board notes that appellant had ample notice that she could not receive partial
disability beginning January 15, 2012 after she returned to work on January 15, 2012 without
wage loss. In an August 17, 2011 letter, OWCP advised appellant that, if she received an
increase in pay over the amount cited in the letter, she should notify it of the increase
immediately and that “failure to do so could cause an overpayment of compensation.” On
September 12, 2011 appellant signed a Form EN1032 in which she certified that she understood
that she had to immediately report to OWCP any change in monies or income from federally
assisted disability or benefit programs. By letter dated September 14, 2011, OWCP advised
appellant that to minimize the possibility of an overpayment of compensation, she should notify
it immediately when she went back to work. It stated, “Each payment shows the period for
which payment is made. If you have worked for any portion of this period, return the payment to
this office, even if you have already advised OWCP that you are working.”
Despite being aware that she could not receive partial disability compensation and full
pay at the same time, appellant accepted compensation to which she was not entitled for the
period January 15, 2012 to May 3, 2014. Therefore, she accepted $80,537.26 in payments she
knew or should have known that she could not receive during this period. In addition to the
above-noted notice regarding the need to return checks for compensation to which she was not

14

20 C.F.R. § 10.433(a).

15

Id. at § 10.433(b).

16

See supra note 14.

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entitled, the extended length that appellant received improper compensation payments would
also have reasonably led her to believe that the payments were improper.17
On appeal, appellant argued that she was not at fault in the creation of the overpayment
because she never hid information from OWCP about her return to work. The Board notes that,
although appellant advised OWCP of her change of address in early 2012, there is no evidence
that she advised OWCP at that time of her change to a new job without wage loss. Moreover,
even if OWCP is negligent in continuing to issue a claimant checks for temporary total disability
after it was informed he or she had returned to work without wage loss, this does not excuse a
claimant’s acceptance of checks which he or she knew or should have been expected to know
should have been returned to OWCP.18 For these reasons, OWCP properly found that appellant
was at fault in the creation of the $80,537.26 overpayment, thereby precluding waiver of
recovery of the overpayment.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an $80,537.26
overpayment of compensation. The Board further finds that OWCP properly determined that
appellant was at fault in the creation of the overpayment of compensation thereby precluding
waiver of recovery of the overpayment.

17

See Claude T. Green, 42 ECAB 274, 281 (1990).

18

Robert W. O’Brien, 36 ECAB 541, 547 (1985).

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ORDER
IT IS HEREBY ORDERED THAT the September 2, 2014 merit decision of the Office
of Workers’ Compensation Programs is affirmed.
Issued: February 12, 2015
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.D., for the Estate of M.D., Appellant
and
DEPARTMENT OF THE AIR FORCE,
FORT SAM HOUSTON, San Antonio, TX,
Employer
__________________________________________

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Appearances:
Mary Lou De Hoyos, for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1647
Issued: July 31, 2020

Case Submitted on the Record

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

JURISDICTION
On July 29, 2019 appellant, through her representative, filed a timely appeal from an
April 2, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).

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.

Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3
ISSUES
The issues are: (1) whether OWCP properly determined that the employee received an
overpayment of compensation in the amount of $76,390.05 for which he was not at fault, as he
concurrently received Social Security Administration (SSA) age-related retirement benefits while
receiving FECA wage-loss compensation for the period August 1, 2010 through October 30, 2018
without appropriate offset; and (2) whether it properly denied waiver of recovery of the
overpayment.
FACTUAL HISTORY
On July 20, 2005 the employee, then a 58-year-old air conditioning equipment mechanic,
filed a notice of traumatic injury (Form CA-1) alleging that on July 14, 2005 he sustained injuries
when pulling a motor assembly to the roof of a building with a rope while in the performance of
duty. OWCP accepted the claim for lumbar intervertebral disc disorder with myelopathy,
thoracic/lumbosacral neuritis/radiculitis, closed dislocation lumbar vertebra, pain in thoracic spine,
closed dislocation thoracic vertebra, muscle spasm, sprain of nasal septum, and sprain/strain of her
back, thoracic region. The employee stopped work on July 14, 2005. OWCP paid the employee
wage-loss compensation on the periodic rolls as of November 27, 2005.
On August 1, 2010 the employee began receiving SSA age-related retirement benefits. On
August 28, 2018 OWCP sent SSA a FERS/SSA Dual Benefits Calculation worksheet for its
completion. The employee continued to receive FECA wage-loss compensation payments.
On December 6, 2018 OWCP advised the employee that it had determined that he had been
receiving FECA wage-loss compensation concurrently with SSA age-related retirement benefits,
therefore his FECA benefits would be adjusted based on the Federal Employees Retirement
System (FERS) portion of SSA benefits attributable to federal service. The employee was advised
that after the SSA offset he would receive $1,212.32 in FECA benefits every 28 days.
That same date, OWCP completed a Manual/Fiscal Payment Worksheet dated
December 6, 2018, which identified an overpayment of compensation in the amount of $77,424.02
for the period August 1, 2010 to December 8, 2018 as FERS offset was needed. Attached was a
listing of the employee’s SSA rates with and without FERS, as well as a worksheet detailing the
overpayment calculation.

2

5 U.S.C. § 8101 et seq.

3

The Board notes that appellant submitted additional evidence to OWCP following the April 2, 2019 decision.
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.

2

On December 11, 2018 the employee’s sister called to notify OWCP that the employee had
died on October 30, 2018. She advised that the employee’s widow did not speak, read, or
understand English.
In a December 11, 2018 letter addressed to the employee’s estate, OWCP provided a
compensation due at death questionnaire for further information regarding the employee’s estate.
The form advised that the questionnaire should be completed by the administrator of the estate, if
one had been appointed, or the next of kin.
On December 24, 2018 OWCP received the questionnaire, completed by the employee’s
sister, noting that the employee had a surviving spouse and two children, and that he had died
intestate. The section regarding whether an administrator or executor had been appointed was left
blank.4 Attached to the completed questionnaire was a copy of the employee’s death certificate
which lists the cause of death as “complications of injuries sustained in a fall with hypertensive
cardiovascular disease and diabetes mellitus.”
A February 22, 2019 FERS offset calculation worksheet indicated that: effective August 1,
2010 the employee’s SSA rate with FERS was $1,468.10 and without FERS was $745.30 which
resulted in an overpayment of $2,907.09 for the period August 1 through November 30, 2010;
effective December 1, 2010, the SSA rate with FERS was $1,468.10 and without FERS was
$745.30 which resulted in an overpayment of $8,697.43 for the period December 1, 2010 through
November 30, 2011; effective December 1, 2011 the SSA rate with FERS was $1,520.90 and
without FERS was $772.10 which resulted in an overpayment of $9,034.97 for the period
December 1, 2011 through November 30, 2012; effective December 1, 2012 the SSA rate with
FERS was $1,546.70 and without FERS was $785.20 which resulted in an overpayment of
$9,163.10 for the period December 1, 2012 through November 30, 2013; effective December 1,
2013 the SSA rate with FERS was $1,569.90 and without FERS was $796.90 which resulted in an
overpayment of $9,301.48 for the period December 1, 2013 through November 30, 2014; effective
December 1, 2014 the SSA rate with FERS was $1,596.50 and without FERS was $810.40 which
resulted in an overpayment of $9,459.12 for the period December 1, 2014 through November 30,
2015; effective December 1, 2015 the SSA rate with FERS was $1,596.50 and without FERS was
$810.40 which resulted in an overpayment of $9,485.03 for the period December 1, 2015 through
November 30, 2016; effective December 1, 2016 the SSA rate with FERS was $1,601.20 and
without FERS was $812.80 which resulted in an overpayment of $9,486.79 for the period
December 1, 2016 through November 30, 2017; and effective December 1, 2017 the SSA rate with
FERS was $1,633.20 and without FERS was $829.00 which resulted in an overpayment of
$8,855.04 for the period December 1, 2017 through October 30, 2018, for a total overpayment of
$76,390.05.
By notice dated February 25, 2019, OWCP issued a preliminary overpayment
determination, addressed to the employee’s estate, finding that an overpayment of compensation
in the amount of $76,390.05 had been created for the period August 1, 2010 through October 30,
2018 because a portion of the employee’s SSA benefits were based on credits he earned while
working in the Federal Government and that this portion of his SSA benefits was a prohibited dual
4

The final FECA wage-loss payment made to the employee’s estate was deposited on January 14, 2019.

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benefit. It found the employee was not at fault in the creation of the overpayment. OWCP advised
the employee’s estate that it could submit evidence challenging the fact and amount of the
overpayment, and request waiver of recovery of the overpayment. It also directed the employee’s
estate to complete an overpayment recovery questionnaire (Form OWCP-20) and advised it of its
appeal rights. OWCP provided a copy of the employee’s compensation payment history along
with its FERS offset calculation. The employee’s estate did not respond within the 30 days’
allotted time.
On April 2, 2019 OWCP contacted the Office of Personnel Management (OPM) to
determine whether any OPM benefits were payable to the employee’s estate.
That same date, OWCP issued a decision, addressed to the employee’s estate, which
finalized the preliminary determination of a $76,390.05 overpayment of compensation. It
determined that, while the employee was without fault in the creation of the overpayment, the
employee’s estate had not requested waiver of recovery of the overpayment and directed that the
overpayment be paid in full. Copies of the employee’s compensation payment history along with
its FERS offset calculation were provided by OWCP.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.5 Section 8116 limits the right of an employee to receive compensation. While an employee
is receiving compensation, he or she may not receive salary, pay, or remuneration of any type from
the United States.6
Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount
of compensation by the amount of SSA benefits that are attributable to federal service of the
employee.7 FECA Bulletin No. 97-09 provides that FECA compensation have to be adjusted for
the FERS portion of SSA benefits because the portion of the SSA benefit earned as a federal
employee is part of the FERS retirement package, and the receipt of FECA benefits and federal
retirement concurrently is a prohibited dual benefit.8

5

5 U.S.C. § 8102(a).

6

Id. at § 8116.

7

20 C.F.R. § 10.421(d); see S.O., Docket No. 18-0254 (issued August 2, 2018); L.J., 59 ECAB 264 (2007).

8
FECA Bulletin No. 97-09 (February 3, 1997); see R.D., Docket No. 19-1598 (issued April 17, 2020; see R.R.,
Docket No. 19-0104 (issued March 9, 2020).

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If OWCP finds that an overpayment exists and the employee has recently passed away
OWCP’s procedures require that steps be taken to offset the overpayment prior to recovery from
the estate.9 These procedures provide as follows:
“e. If the claimant recently passed away, the OWCP should refer the debt to FMA
[Financial Management System] for offset of the deceased claimant’s last Federal
tax refund under the Treasury’s Offset Program (TOP). 31 § CFR 285.2. The
OWCP has a special profile with FMS under TOP for the collection of these
specific estate debts. The CE [claims examiner] should follow the referral
procedures set forth in PM 6-0500.12, including sending the complete referral
package to the National Office for final review and forwarding to the FMS.
“f. Upon learning that a claimant with an existing overpayment has died, the
District Office shall immediately contact the OPM to determine the availability of
any OPM benefits payable at the time of death that may be administratively offset,
e.g., basic employee death benefits, survivor annuity benefits, or lump sum refund
of the deceased employee’s retirement contributions (5 CFR § 831.1805). If such
OPM benefits are available for offset, the District Office should refer to procedures
set forth in PM 6-0500.10.”
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision.
OWCP was required to follow certain procedures to protect appellant in overpayment cases
wherein it has knowledge that a beneficiary with an existing overpayment has died.10 In this case,
the evidence of record does not substantiate the actions OWCP has taken to recover the
overpayment debt through an offset from OPM benefits or through the TOP, prior to taking
overpayment actions against the estate. While OWCP contacted OPM on April 2, 2019, no
response was received from OPM prior to the issuance of the April 2, 2019 decision.11 The case
shall therefore be remanded for OWCP to follow its procedures as outlined in Chapter 6.500.15 of

9

J.P., Docket No. 18-1194 (issued April 28, 2020); see Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Recovery of an Existing Debt from a Deceased Debtor’s Estate, Chapter 6.500.15(e-f)
(September 2018).
10

See J.P., id.

11

See S.B., Docket No. 18-1420 (issued June 20, 2019).

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its procedures.12 Following this and any other further development as deemed necessary, OWCP
shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 2, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded to OWCP for further proceedings.
Issued: July 31, 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

12

Supra note 9; see also S.B., id.

6


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

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

Docket No. 13-91
Issued: May 6, 2013

Case Submitted on the Record

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

JURISDICTION
On October 16, 2012 appellant, through his attorney, filed a timely appeal from a
September 13, 2012 Office of Workers’ Compensation Programs (OWCP) decision which
denied his reconsideration request on the grounds that it was untimely filed and failed to present
clear evidence of error. Because more than 180 days has elapsed between the most recent
OWCP merit decision, dated February 19, 2010, and the filing of this appeal on October 16,
2012, the Board lacks jurisdiction to review the merits of appellant’s claim pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly determined that appellant’s February 8, 2012
request for reconsideration was not timely filed and failed to present clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 7, 2010 appellant, then a 38-year-old city transitional carrier, filed a Form
CA-1, notice of traumatic injury, alleging that on December 30, 2009 he was hit by a car and
sustained injuries to his head, neck and back. He did not stop work.
Appellant submitted a January 5, 2009 statement and indicated that on December 30,
2009 he was struck by an automobile. He indicated that the next day he began to feel poorly and
went to see his physician on January 6, 2010. On January 6, 2010 appellant was treated by
Dr. Michael Hartmann, a Board-certified emergency room physician, for a head injury.
Dr. Hartmann diagnosed cervical strain and concussion/head injury and noted the computerized
tomography (CT) scan and x-rays were negative.
Appellant was also treated by
Dr. Sonal N. Bhatt, a Board-certified internist, on January 6, 2010 for contusion of the face, scalp
and neck, lumbar sprain and concussion. A CT scan of the cervical spine dated January 6, 2010
revealed no fractures. X-rays of the cervical, thoracic and lumbar spine dated January 6, 2010
were normal.
By letter dated January 20, 2010, OWCP advised appellant of the type of factual and
medical evidence needed to establish his claim, particularly requesting that he submit a
physician’s reasoned opinion addressing the relationship of his claimed condition and specific
employment factors.
Appellant submitted a January 7, 2010 note from Dr. Timothy J. Erickson, a chiropractor,
who treated appellant on that date and recommended additional treatment. In a January 8, 2010
report, Dr. Bhatt diagnosed contusion of the face, scalp and neck and lumbar sprain and
concussion. Also submitted were physical therapy notes from January 25, 2010.
By decision dated February 19, 2010, OWCP denied appellant’s claim on the grounds
that he failed to establish that the claimed medical condition was causally related to the
established work-related events.
Appellant continued to submit evidence. In a November 28, 2011 letter, his counsel
noted submitting a medical report and asked that OWCP accept the claim. On January 5, 2012
OWCP responded to counsel’s letter and advised that, as OWCP denied the claim on
February 19, 2010, all appeal rights had expired.
On February 8, 2012 appellant, through his attorney, requested reconsideration. He
asserted that his claim was denied because his chiropractor did not diagnose a subluxation of the
spine upon reviewing an x-ray. Appellant’s attorney asserted that on December 27, 2011
Dr. Erickson diagnosed a subluxation and that this was positive, precise and explicit evidence of
the compensability of appellant’s claim. In an attached December 27, 2011 report, Dr. Erickson
responded to an inquiry from appellant’s counsel and advised that his records should have
reflected a subluxation diagnosis. Appellant submitted x-rays of the lumbar, thoracic and
cervical spine dated January 6, 2010, a report from Dr. Hartmann dated January 6, 2010, reports
from Dr. Bhatt dated January 6 and 8, 2010 and a January 7, 2010 report from Dr. Erickson, all
previously of record. He submitted reports from Dr. Bhatt, dated January 14 to 29, 2010, who
treated him for a December 30, 2009 injury where he sustained a contusion to the face, scalp and

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neck. Dr. Bhatt diagnosed concussion without loss of consciousness and lumbar and cervical
strain. Other reports dated February 3 to March 12, 2010 noted appellant’s complaints of
dizziness, visual disturbances and lumbar and cervical pain. She diagnosed concussion, face and
scalp contusion, cervical and lumbar strain and referred appellant to a neurologist. Also
submitted were physical therapy reports dated January 12 to February 8, 2010. A February 1,
2010 magnetic resonance imaging scan of the brain revealed no abnormalities. Appellant
submitted a January 7, 2010 physical examination report prepared by Dr. Erickson who noted
that appellant was hit by a car on December 30, 2009 and experienced dizziness, neck pain and
headaches. Dr. Erickson noted pain with cervical and dorso lumbar range of motion studies,
numbness and spasm. He noted positive Soto Hall, Rhomberg and Kemps test. In an
October 31, 2011 report, Dr. Erickson provided a history of injury indicating that, on
December 30, 2009, while on duty as a mail carrier, appellant was struck by a hit and run driver.
He noted subjective complaints of neck, midback, low back and shoulder pain, headaches,
dizziness, numbness, forgetfulness and visional issues. Dr. Erickson noted findings upon
physical examination of decreased cervical, thoracic and lumbar range of motion, positive
foraminal compression and tenderness upon palpation of the cervical, thoracic and lumbar spine.
He diagnosed contusion of the face, scalp and neck, concussion and neck, lumbar and thoracic
sprain. Dr. Erickson opined that the facts of injury were the direct and proximate cause of the
diagnoses. On an ICD-9 Diagnosis Codes form, he noted sprain of the neck and lumbago. In a
December 27, 2011 e-mail to appellant’s attorney, Dr. Erickson noted that after reviewing his
notes he diagnosed sprain and strain.
By decision dated September 13, 2012, OWCP denied appellant’s request for
reconsideration as it was untimely and did not establish clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”2
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607(a) provides that
OWCP will not review a decision unless the application for review is filed within one year of the
date of that decision.3 However, OWCP will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation, if the claimant’s application for review shows
2

5 U.S.C. 8128(a).

3

20 C.F.R. § 10.607(b); Annie L. Billingsley, 50 ECAB 210 (1998).

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clear evidence of error on the part of OWCP in its most recent merit decision. To establish clear
evidence of error, a claimant must submit evidence relevant to the issue that was decided by
OWCP. The evidence must be positive, precise and explicit and must be manifest on its face that
OWCP committed an error.4
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflicting medical opinion or establish a clear procedural error, but
must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of OWCP’s decision.5
Evidence that does not raise a substantial question concerning the correctness of OWCP’s
decision is insufficient to establish clear evidence of error.6 It is not enough merely to show that
the evidence could be construed so as to produce a contrary conclusion.7 This entails a limited
review by OWCP of the evidence previously of record and whether the new evidence
demonstrates clear error on the part of OWCP.8 The Board makes an independent determination
as to whether a claimant has submitted clear evidence of error on the part of OWCP.9
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
application for review. OWCP’s procedures provide that the one-year time limitation period for
requesting reconsideration begins on the date of the original OWCP decision.10 A right to
reconsideration within 180 days also accompanies any subsequent merit decision on the issues.
As appellant’s February 8, 2012 request for reconsideration was submitted more than 180 days
after the most recent merit decision of February 19, 2010 it was untimely.11 Consequently, he
must demonstrate clear evidence of error by OWCP in denying his claim for compensation.12
The Board also finds that appellant has not established clear evidence of error on the part
of OWCP. Appellant’s February 8, 2012 request indicated that the last merit decision was
February 19, 2010 and that OWCP had jurisdiction to reconsider an untimely denial of his claim
if it demonstrated clear evidence of error. He asserted that Dr. Erickson’s December 27, 2011
report demonstrated clear evidence of error and that the February 19, 2010 merit decision should
4

20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).

5

Annie L. Billingsley, supra note 2.

6

Jimmy L. Day, 48 ECAB 652 (1997).

7

Id.

8

Id.

9

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993).

10

20 C.F.R. § 10.607(a).

11

To the extent that counsel’s November 28, 2011 letter represented a reconsideration request, this letter was also
submitted more than one year after the February 19, 2010 OWCP decision.
12

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

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be vacated. While appellant addressed his disagreement with OWCP’s decision to deny his
claim for traumatic injury, his general allegations do not raise a substantial question as to the
correctness of OWCP’s decision. OWCP properly found that his statement of February 8, 2012
did not establish clear evidence of error.
The Board notes that the underlying issue is medical in nature and that, on
reconsideration, appellant submitted x-rays of the lumbar, thoracic and cervical spine dated
January 6, 2010, a report from Dr. Hartmann dated January 6, 2010, reports from Dr. Bhatt dated
January 6 and 8, 2010 and a January 7, 2010 note from Dr. Erickson. OWCP had previously
considered this evidence and appellant, in submitting this document, did not explain how this
evidence was positive, precise and explicit in manifesting on its face that OWCP committed an
error in denying his claim for compensation. It is not apparent how resubmission of this
evidence is sufficient to raise a substantial question as to the correctness of OWCP’s decision.
Following OWCP’s February 19, 2010 decision and on reconsideration appellant
submitted additional medical evidence. A January 7, 2010 physical examination form from
Dr. Erickson noted a history of injury on December 30, 2009 and findings of pain with cervical
and dorso lumbar range of motion studies, numbness and spasm. In an October 31, 2011 report,
he noted a history of injury and diagnosed contusion of the face, scalp and neck, concussion and
neck, lumbar and thoracic sprain. Similarly, on a diagnosis code form, Dr. Erickson noted sprain
of the neck and lumbago. In a December 27, 2011 report, he noted that his records should have
reflected a subluxation diagnosis. On reconsideration request, appellant relied on Dr. Erickson’s
December 27, 2011 report as establishing clear evidence of error. Dr. Erickson, however, is not
a physician as defined under FECA as he did not diagnose a spinal subluxation based on x-ray.
Rather, he noted only that a sprain and strain were diagnosed and did not indicate that he
reviewed x-rays.13 Appellant did not explain how this considered evidence was positive, precise
and explicit in manifesting on its face that OWCP erred by denying his claim for a traumatic
injury on December 30, 2009. Even if Dr. Erickson’s reports could be considered medical
evidence,14 clear evidence of error is intended to represent a difficult standard. The submission
of 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.15
Appellant submitted reports from Dr. Bhatt dated January 14 to March 12, 2010, who
treated him for a December 30, 2009 injury where he sustained a contusion to the face, scalp and
13

5 U.S.C. § 8101(2). Section 8101(2) of FECA provides that the term physician ... includes chiropractors only
to the extent that their reimbursable services are limited to treatment consisting of manual manipulation of the spine
to correct a subluxation as demonstrated by x-ray to exist. See also Mary A. Ceglia, 55 ECAB 626 (2004) (in
assessing the probative value of chiropractic evidence, the initial question is whether the chiropractor is a physician
as defined under 5 U.S.C. § 8101(2); a chiropractor is not considered a physician under FECA unless it is
established that there is a spinal subluxation as demonstrated by x-ray to exist).
14

See 20 C.F.R. § 10.5(bb) (defines spinal subluxation as incomplete dislocation, off-centering, misalignment,
fixation or abnormal spacing of the vertebrae which must be demonstrable on any x-ray film).
15

D.G., 59 ECAB 455 (2008); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.3c (January 2004).

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neck. Dr. Bhatt diagnosed concussion without loss of consciousness, lumbar and cervical strain,
dizziness, visual disturbances face and scalp contusion. However, she failed to provide a
rationalized opinion regarding the causal relationship between appellant’s head, cervical and
lumbar injuries and the factors of employment believed to have caused or contributed to such
condition.16 As noted, clear evidence of error is intended to represent a difficult standard. This
evidence is not so positive, precise and explicit that it manifests on its face that OWCP
committed an error. Consequently, the Board finds that Dr. Bhatt’s reports submitted on
reconsideration are insufficient to raise a substantial question as to the correctness of OWCP’s
decision. No other medical evidence submitted by appellant raises a substantial question as to
the correctness of OWCP’s decision. Thus, appellant has not established clear evidence of error
by OWCP in its September 13, 2012 decision.
Also submitted were physical therapy reports dated January 12 to February 8, 2010. The
Board has held that treatment notes signed by a physical therapist are not considered medical
evidence as these providers are not a physician under FECA.17
CONCLUSION
The Board finds that appellant’s request for reconsideration dated February 8, 2012 was
untimely filed and did not demonstrate clear evidence of error.

16

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).
17

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician’s assistants, nurses and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a “physician” as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and
osteopathic practitioners within the scope of their practice as defined by State law).

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ORDER
IT IS HEREBY ORDERED THAT the September 13, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 6, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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Appearances:
C.B. Weiser, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-804
Issued: November 16, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 3, 2009 appellant filed a timely appeal of the November 18, 2008 merit
decision of the Office of Workers’ Compensation Programs, which terminated her wage-loss
compensation and medical benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board
has jurisdiction over the merits of the claim.
ISSUE
The issue is whether the Office properly terminated appellant’s wage-loss compensation
and medical benefits effective April 23, 2008.
FACTUAL HISTORY
This case was previously before the Board.1 Appellant, a 44-year-old former rural carrier
and acting supervisor, has an accepted occupational disease claim for major depression, which

1

Docket No. 06-1939 (issued January 30, 2007).

arose on or about January 1, 2001.2 When the case was last on appeal, the Office had denied her
claim because she failed to establish a compensable employment factor. Appellant reported that
she had been subjected to racial and sexual harassment in the workplace. The claimed
harassment stemmed from a rumored sexual liaison between appellant and her station manager,
Joseph S. Bradley.
In a decision dated January 30, 2007, the Board disagreed with the Office and found that
appellant established two compensable employment factors. Appellant demonstrated that she
had been subjected to verbal abuse and harassment from supervisors, including Tim Perdue. She
also established that she had been harassed by a coworker, Tara Jean Bradford. Because the
Office had not previously addressed the medical evidence of record, the Board remanded the
case for further development and the issuance of a de novo decision.3
On remand, the Office requested an updated report from appellant’s physician,
Dr. Gerald A. Shiener, a Board-certified psychiatrist,4 who examined appellant on March 1, 2007
and in a report dated March 23, 2007 he diagnosed major depression with features of PTSD in
partial remission. Dr. Shiener attributed appellant’s psychiatric condition to the accepted
compensable factors involving Mr. Perdue and Ms. Bradford. He indicated that her prognosis
for further recovery was poor and she was not likely to get better. Dr. Shiener also noted that
since February 6, 2001 appellant had been totally disabled from performing her rural carrier
duties. He explained that the experiences she had while working for the employing
establishment were so traumatic that if she were exposed to that work again or similar work it
would cause an aggravation of her current symptomatology. Dr. Shiener further indicated that
appellant would not be able to function at the level of a supervisor or letter carrier because of her
depressive illness and limited concentration and energy level. He also noted that, while she was
currently employed as a security officer at a casino, this type work was much less demanding
and she was functioning at a much lower level.
Based on Dr. Shiener’s March 23, 2007 report, the Office accepted appellant’s claim for
major depression. Dr. Shiener’s latest findings also formed the basis for the Office’s award of
wage-loss compensation dating back to February 2001.5
Dr. Michael H. Gotlib, a Board-certified psychiatrist and Office referral physician,
examined appellant on October 17, 2007 and diagnosed dysthymia by history. He noted that she
previously worked as a rural carrier and currently worked full time as a security officer.
Dr. Gotlib reported the following history of injury: “[Appellant]... stated [that] she was
experiencing sexual harassment and racial intimidation by coworkers and her superiors.” He
2

Appellant stopped work on January 27, 2001 and never returned. She was separated from service effective
September 21, 2001.
3

The Board’s January 30, 2007 decision is incorporated herein by reference.

4

In a May 6, 2002 report, Dr. Shiener diagnosed employment-related major depression with features of posttraumatic stress disorder (PTSD).
5

Appellant received $106,970.98 in wage-loss compensation for the period February 11, 2001 through
December 31, 2006.

2

further noted that she had not seen a psychiatrist or been on medication for two years. Dr. Gotlib
indicated that appellant’s mental status examination was normal and that she currently had no
residual effects of the accepted condition of major depression. He also advised that she was fully
capable of working without restrictions and performing the job of rural letter carrier. According
to Dr. Gotlib, appellant was functioning normally, her prognosis was good and no further
treatment was indicated. As to any prior disability, he said that there was no way for him to
determine what her condition was beginning February 2001 but currently she showed no signs of
residual effects.
On November 30, 2007 the Office wrote to Dr. Gotlib requesting that he review
additional medical records and then comment on whether appellant was totally disabled from
performing her rural letter carrier position beginning February 6, 2001.
In a supplemental report dated January 29, 2008, Dr. Gotlib reiterated that he could not
offer an opinion regarding appellant’s disability status prior to his October 17, 2007 examination.
He explained that there was no way of knowing her condition from February 6, 2001.
On February 14, 2008 the Office forwarded Dr. Gotlib’s October 17, 2007 report to
Dr. Shiener for his review.
On March 18, 2008 the Office issued a notice of proposed termination of compensation
and medical benefits based on Dr. Gotlib’s opinion. It questioned the reliability of Dr. Shiener’s
March 23, 2007 report because it was purportedly unclear whether he had recently examined
appellant. The Office also characterized Dr. Shiener’s remarks about appellant’s inability to
return to the employing establishment as “prophylactic restrictions.” Otherwise, it found
Dr. Gotlib’s and Dr. Shiener’s conflicting opinions of comparable weight and value. The Office
afforded appellant 30 days to submit additional evidence or argument to the extent that she
disagreed with the proposed termination of benefits.
Appellant responded on April 17, 2008. While she voiced disagreement over the
proposed termination of benefits, she did not submit any evidence in response to Dr. Gotlib’s
reports. Appellant claimed that the only report she had been provided was Dr. Gotlib’s
January 19, 2008 supplemental report. She also noted that Dr. Gotlib’s October 17, 2007
examination was cursory; lasting “no more than 10 minutes.”
On April 23, 2008 the Office issued a final decision terminating appellant’s
compensation and medical benefits effective that same day. It noted that the weight of the
medical evidence was represented by the “impartial Board-certified” Dr. Gotlib.
The Office subsequently received a May 9, 2008 report from Dr. Shiener, who
reexamined appellant on April 1, 2008 and also reviewed Dr. Gotlib’s October 17, 2007 report.
Dr. Shiener diagnosed major depression with features of PTSD in partial remission and chronic.
He noted his disagreement with Dr. Gotlib’s diagnosis of dysthymia. Dr. Shiener stated that,
although appellant remained chronically depressed, her depression began with an episode of
major depression and she continued to exhibit feelings of hopelessness, low energy and difficulty
initiating activity. He explained that appellant’s presentation was beyond what is seen in

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dysthymia. Dr. Shiener stated that, based on his current examination, appellant remained
disabled from performing the job of rural letter carrier and 204-B supervisor in training.
Appellant requested an oral hearing, which was held on September 10, 2008. Following
the hearing, she submitted a September 29, 2008 report from Dr. Ancuta E. Matei, a Boardcertified psychiatrist, who had initially examined her on April 19, 2008. Dr. Matei diagnosed
major depressive disorder and PTSD. She also provided a differential diagnosis (r/o) of panic
disorder with agoraphobia. Dr. Matei noted that appellant had been struggling with symptoms of
anxiety and depression. She stated that appellant remained disabled from working as a rural
letter carrier and supervisor in training. Dr. Matei further noted that appellant was currently
receiving psychiatric treatment, which consisted of individual psychotherapy and medication
management.
By decision dated November 18, 2008, the hearing representative affirmed the Office’s
April 23, 2008 decision terminating benefits. The hearing representative found that Dr. Gotlib’s
opinion represented the weight of the medical evidence. Dr. Shiener’s contrary opinion was
deemed insufficient to create a conflict because of perceived discrepancies regarding appellant’s
employment history. The hearing representative did not comment on or otherwise reference
Dr. Matei’s September 29, 2008 report.
LEGAL PRECEDENT
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.6 Having determined that an employee has a disability
causally related to his or her federal employment, the Office may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.7 The right to medical benefits for an accepted condition is not limited to the period
of entitlement to compensation for disability.8 To terminate authorization for medical treatment,
the Office must establish that appellant no longer has residuals of an employment-related
condition, which require further medical treatment.9
ANALYSIS
Appellant’s counsel has consistently argued that there is an unresolved conflict in
medical opinion between Dr. Shiener and Dr. Gotlib.10 The Board agrees. For a conflict to arise,
6

Curtis Hall, 45 ECAB 316 (1994).

7

Jason C. Armstrong, 40 ECAB 907 (1989).

8

Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

9

Calvin S. Mays, 39 ECAB 993 (1988).

10

The Federal Employees’ Compensation Act provides that if there is disagreement between the physician
making the examination for the Office and the employee’s physician, the Office shall appoint a third physician who
shall make an examination. 5 U.S.C. § 8123(a)(2006); Shirley L. Steib, 46 ECAB 309, 317 (1994). Where the
Office has referred appellant to an impartial medical examiner to resolve a conflict in the medical evidence, the
opinion of such a specialist, if sufficiently well rationalized and based upon a proper factual background, must be
given special weight. Gary R. Sieber, 46 ECAB 215, 225 (1994).

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the opposing physicians’ viewpoints must be of “virtually equal weight and rationale.”11 The
Office has provided varying reasons for according diminished weight to Dr. Shiener’s March 23,
2007 and May 9, 2008 reports. Initially, it was because of so-called “prophylactic restrictions”
and a perceived ambiguity about whether Dr. Shiener examined appellant in March 2007.12
Upon further review, the hearing representative abandoned the Office’s prior rationale and
instead rejected Dr. Shiener’s opinion based on his purported contradictory statements regarding
appellant’s employment status. In one example, the hearing representative noted that Dr. Shiener
stated that appellant was not working and then later on in his report he noted that she was
working as a security guard for a casino. Another purported contradiction was his comment that
appellant was having financial difficulties -- living on child support and food stamps -- while
also noting appellant’s annual earnings of approximately $30,000.00 from her casino job.
However, these are not contradictory remarks. The hearing representative merely failed to
distinguish between what Dr. Shiener identified as appellant’s “Initial History” obtained during
his 2002 evaluation and her “Additional History,” which she provided during the March 1, 2007
evaluation.
The hearing representative also found a contradiction in Dr. Shiener’s statement: “There
is no indication that the claimant has been able to return to work.” According to the hearing
representative, this statement was “clearly incorrect since (sic) the claimant reporting (sic)
working at MGM Grand since December 15, 2003.” The quoted passage from Dr. Shiener was a
response to a specific question posed by the Office regarding appellant’s ability to resume her
prior duties as a rural letter carrier.13 It was not a comment about appellant’s ability to work in
general but about her inability to resume work as a rural letter carrier. The hearing
representative improperly interpreted Dr. Shiener’s remark out of context.
Similarly, unwarranted was the senior claims examiner’s earlier characterization of
Dr. Shiener’s March 23, 2007 disability assessment as “prophylactic.” He explained that
appellant’s experiences working for the employing establishment were so traumatic that if she
were again exposed to the same or similar work it would aggravate her current symptomatology.
This was not a prophylactic restriction but recognition of the possibility of triggering events,
which are commonly associated with PTSD. Apart from what might happen if appellant
returned to her previous duties, Dr. Shiener unequivocally stated that she was currently unable to
function at the level of a supervisor or letter carrier because of her depressive illness, limited
concentration and reduced energy level. As such, he found appellant disabled from performing
her date-of-injury position. Dr. Shiener did not merely provide “prophylactic restrictions.”
11

Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

12

In the March 18, 2008 notice of proposed termination, the senior claims examiner indicated that “no specific
date of examination was provided.” However, the first page of Dr. Shiener’s March 23, 2007 report states that he
reevaluated appellant on March 1, 2007.
13

In a letter dated February 23, 2007, the Office asked Dr. Shiener the following question: “Has the claimant
been totally disabled and unable to work in the position of rural carrier since [February 6, 2001]? Please explain. If
the claimant is not totally disabled, please provide the date she was able to return to duty and please provide her
current work restrictions.” In response, Dr. Shiener indicated that appellant had been totally disabled and unable to
work as a rural letter carrier since February 6, 2001. The above-noted passage quoted by the hearing representative
was Dr. Shiener’s response to the second part of the question, “If the claimant is not totally disabled....”

5

Ironically, the Office found deficient the same medical evidence it had previously relied
upon to accept appellant’s claim for major depression and award her more than $100,000.00 in
compensation benefits. The Board finds that Dr. Shiener’s March 23, 2007 and May 9, 2008
reports are at least on par with Dr. Gotlib’s October 17, 2007 report. Moreover, the hearing
representative appears to have overlooked Dr. Matei’s September 29, 2008 report, which
evidence lends further support to Dr. Shiener’s position. As appellant’s counsel correctly argued
there is a conflict of medical opinion between Dr. Shiener and Dr. Gotlib. Because there is an
unresolved conflict in medical opinion, the Office has not met its burden to terminate appellant’s
benefits.
CONCLUSION
The Office improperly terminated appellant’s compensation and medical benefits
effective April 23, 2008.
ORDER
IT IS HEREBY ORDERED THAT the November 18, 2008 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: November 16, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 11-340
Issued: September 14, 2011

Case Submitted on the Record

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

JURISDICTION
On November 23, 2010 appellant filed a timely appeal from a November 3, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his traumatic
injury claim. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a left
knee injury in the performance of duty on August 23, 2010.
FACTUAL HISTORY
On September 8, 2010 appellant, then a 49-year-old postal service clerk, filed a traumatic
injury claim (Form CA-1) alleging that on August 23, 2010 he sustained a left knee injury when
he was pushing a loaded bulk mail center (BMC) that turned to the right which caused him to
1

5 U.S.C. § 8101 et seq.

feel a snap in his left knee. He notified his supervisor on September 8, 2010. The employing
establishment controverted the claim alleging that appellant was involved in a motor vehicle
accident on August 24, 2010.
In a September 8, 2010 medical report, Dr. Marcus Hodges, Board-certified in family
medicine, stated that appellant complained of left knee pain. Appellant reported that he was
pushing a heavy piece of equipment when he twisted his left knee. Dr. Hodges noted that
appellant’s left knee x-ray was normal. He diagnosed questionable internal derangement and
possible cartilage tear. In a September 8, 2010 duty status report (Form CA-17), Dr. Hodges
diagnosed appellant with a left knee sprain and placed him on modified duty.
By letter dated September 22, 2010, OWCP requested additional factual and medical
evidence from appellant and asked that he respond to the provided questions within 30 days. It
also requested that appellant provide a statement describing any injury sustained, as well as a
copy of the police report and medical documentation from his August 24, 2010 motor vehicle
accident.
In a September 8, 2010 radiology report of the left knee, Dr. Hodges found that there
were no significant abnormalities of the bone, joint or soft tissue. He also noted no evidence of
fracture, destructive bony lesion or significant degenerative changes.
In a September 16, 2010 medical report, Dr. Philip Green, Board-certified in internal
medicine, reported that appellant’s twisted left knee injury had been resolved and that he could
return to full active duty.
In an October 18, 2010 report, Richard Brown, a treating physician’s assistant (PA-C),
reported that appellant complained of recurrent left knee pain. Upon physical examination, he
noted discomfort on extension and full flexion of the knee and placed appellant on light-duty
work restrictions.
By decision dated November 3, 2010, OWCP denied appellant’s claim finding that the
medical evidence did not demonstrate that he sustained a left knee injury related to the
August 23, 2010 employment incident.2
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed are causally related to the
2

The Board notes that appellant submitted additional evidence after OWCP rendered its November 3, 2010
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. §510.2(c)(1); Dennis E.
Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). Appellant may submit this evidence
to OWCP, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§ 10.606(b)(2).

2

employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or occupational disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.5 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.6 The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant. This medical opinion
must include an accurate history of the employee’s employment injury and must explain how the
condition is related to the injury. The weight of medical evidence is determined by its reliability,
its probative value, its convincing quality, the care of analysis manifested and the medical
rationale expressed in support of the physician’s opinion.7
ANALYSIS
OWCP accepted that the August 23, 2010 incident occurred as alleged. The issue is
whether appellant established that the incident caused a left knee injury. The Board finds that he
did not submit sufficient medical evidence to support that his left knee injury is causally related
to the August 23, 2010 employment incident.8
In a September 8, 2010 medical report, Dr. Hodges stated that appellant complained of
left knee pain from pushing a piece of heavy equipment. He opined that appellant’s condition
could be a result of a possible internal derangement and cartilage tear. Dr. Hodges noted that
appellant’s x-ray and radiology report of the left knee was normal, diagnosed left knee sprain and
placed appellant on modified duty.

3

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

4

Michael E. Smith, 50 ECAB 313 (1999).

5

Elaine Pendleton, supra note 3.

6

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

7

James Mack, 43 ECAB 321 (1991).

8

See Robert Broome, 55 ECAB 339 (2004).

3

The Board finds that the opinion of Dr. Hodges is not well rationalized. While
Dr. Hodges diagnosed appellant’s injury, he did not explain whether or how the accepted
August 23, 2010 incident caused or contributed to any knee injury and failed to address
appellant’s prior medical history. The Board has held that medical evidence that does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the
issue of causal relationship.9 Thus, Dr. Hodges report is insufficient to meet appellant’s burden
of proof.
In a September 16, 2010 medical report, Dr. Green reported that appellant’s twisted left
knee injury had been resolved and that he could return to full active duty. He did not provide
any other information regarding appellant’s injury and failed to address his prior medical history,
the cause of his injury or the August 23, 2010 employment incident. Dr. Green’s report did not
describe or explain appellant’s medical condition other than noting that the condition was
resolved. Without medical reasoning explaining how the August 23, 2010 incident caused his
left knee injury, Dr. Green’s report is insufficient to meet appellant’s burden of proof.10
In an October 18, 2010 report, Richard Brown PA-C reported that appellant complained
of recurrent left knee pain and noted discomfort on extension and full flexion of the left knee.
This medical evidence is insufficient to establish a causal relationship between appellant’s knee
condition and the August 23, 2010 employment incident. Registered nurses, licensed practical
nurses and physicians’ assistants, they are not physicians as defined under FECA, their opinions
are of no probative value.11
While appellant contends that his knee condition is a result of the August 23, 2010
employment incident, the employing establishment controverted the claim alleging that appellant
was involved in a motor vehicle accident on August 24, 2010, the day after the employment
incident. On September 22, 2010 OWCP requested additional information from appellant
regarding this motor vehicle accident. Appellant did not respond to the OWCP request. As the
motor vehicle accident occurred between the August 23, 2010 employment incident and when
appellant first sought treatment on September 8, 2010, the lack of evidence regarding the this
accident significantly hampers the ability of OWCP to investigate the medical circumstances of
his claim. It is more difficult to determine whether any physiological change might have resulted
from appellant’s August 23, 2010 employment episode or the August 24, 2010 motor vehicle
accident.
Evidence submitted by appellant after the final decision cannot be considered by the
Board. As previously noted, the Board’s jurisdiction is limited to reviewing the evidence that
was before OWCP at the time of its decision.12 Appellant may submit additional evidence,
9

S.E., Docket No. 08-2214 (issued May 6, 2009); C.B., Docket No. 09-2027 (issued May 12, 2010).

10

Id.

11

5 U.S.C. § 8102(2) of FECA provides as follows: (2) ‘physician’ includes surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as
defined by State law.
12

20 C.F.R. § 501.2(c)(1).

4

together with a written request for reconsideration, to OWCP within one year of the Board’s
merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his left
knee injury is causally related to the August 23, 2010 employment incident, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the November 3, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 14, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, FEDERAL
CORRECTIONAL INSTITUTION,
Texarkana, TX, Employer
__________________________________________

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

Docket No. 20-0739
Issued: November 13, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 18, 2020 appellant filed a timely appeal from an August 29, 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.2

1

5 U.S.C. § 8101 et seq.

2
The Board notes that, following the August 29, 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 new
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish greater than 30
percent permanent impairment of her left lower extremity, for which she previously received a
schedule award compensation.
FACTUAL HISTORY
On January 28, 2002 appellant, then a 44-year-old legal instrument examiner, filed a
traumatic injury claim (Form CA-1) alleging that on January 25, 2002 she sustained a left knee
injury during a training exercise when a coworker fell on her left leg while in the performance of
duty. OWCP accepted the claim for left knee meniscal tear and later expanded the acceptance of
appellant’s claim to include the additional condition of localized secondary osteoarthritis of the
left lower extremity. Appellant stopped work on January 28, 2002.
On February 28, 2002 Dr. John Young, a Board-certified orthopedic surgeon, performed
an arthroscopic anterior cruciate ligament (ACL) reconstruction and debridement of the lateral
meniscal tear. He diagnosed left medial collateral ligament (MCL) rupture, ACL rupture, and
lateral meniscal tear.3 OWCP paid appellant wage-loss compensation on the supplemental rolls
from June 16 to July 13, 2002.
Appellant filed a claim for a schedule award (Form CA-7). By decision dated April 16,
2003, OWCP granted her a schedule award for eight percent permanent impairment of the left
lower extremity.4 The period of the award, equivalent to 25.92 weeks, ran from February 11 to
August 11, 2003.
A March 9, 2012 magnetic resonance imaging (MRI) scan of the left knee revealed an
extensive tear of the anterior horn and body of the medial meniscus, small tear of the meniscal
root, nondisplaced tear of the posterior horn of the lateral meniscus, grade IV chondromalacia
patella, intact ACL graft, osteoarthritis in the medial compartment of the knee, and
chondrocalcinosis.
In a January 29, 2013 report, Dr. Richard B. Sharp, a Board-certified physiatrist, diagnosed
degenerative changes of the left knee, related to the work injury of 2002; ACL reconstruction, tear
of anterior horn and body of the medial meniscus, nondisplaced tear of the posterior horn of the
lateral meniscus, and intact ACL graft. He opined that appellant reached maximum medical
improvement (MMI) on January 18, 2013. Dr. Sharp advised that, without a definitive episode of
trauma or recent injury, it would be difficult to attribute this to another work injury. He also noted
that appellant had worsening of degenerative changes of the knee, which could not be solely
attributed to her work injury in 2002. Dr. Sharp opined that based on the American Medical
3

This procedure was authorized by OWCP.

4
The Board notes that on March 27, 2003 Dr. H. Mobley, Board-certified in orthopedic medicine and a district
medical adviser (DMA), calculated impairment under the fifth edition of the American Medical Association, Guides
to the Evaluation of Permanent Impairment (A.M.A., Guides) (5th ed. 2001). Dr. Mobley opined that appellant had
nine percent permanent impairment of the left lower extremity. It is unclear why OWCP granted appellant eight
percent permanent impairment.

2

Association, Guides to the Evaluation of Permanent Impairment, (A.M.A., Guides),5 appellant
would receive zero percent permanent impairment rating for nonwork-related knee findings.
On July 29, 2013 appellant filed a Form CA-7 claim for an increased schedule award.
In an August 5, 2013 report, Dr. Michael M. Katz, Board-certified in orthopedic medicine
serving as a DMA, reviewed Dr. Sharp’s January 29, 2013 report. He opined that there was a
significant probability that the osteoarthritis in appellant’s left knee was caused, at least in part, by
her work-related injury given the association of the ACL injury with the subsequent osteoarthritis.6
The DMA recommended appellant be referred for a second opinion impairment evaluation.
On November 8, 2013 OWCP referred appellant’s case, along with a statement of accepted
facts (SOAF), for a second opinion examination with Dr. Robert E. Holladay, IV, a Board-certified
orthopedic surgeon. In a November 21, 2013 report, Dr. Holladay diagnosed left ACL tear,
postoperative left knee ACL reconstruction, and osteoarthritis of the left knee with flexion
contracture. He referred to the A.M.A., Guides, Knee Regional Grid at Table 16-3, page 511 and
noted that, for the left knee, the cruciate ligament reconstruction description of diagnostic criteria
did not apply so he used the range of motion (ROM) methodology. Pursuant to Table 16-23, page
549, Dr. Holladay found ROM for the left knee for flexion of 102 degrees was 10 percent left
lower extremity impairment and 10 degrees of flexion contracture was 20 percent left lower
extremity impairment. He applied the higher impairment rating of 20 percent left lower extremity
impairment.
In a February 11, 2014 report, Dr. Ronald Blum, Board-certified in orthopedics and serving
as a DMA, reviewed Dr. Holladay’s November 21, 2013 report, and used his examination findings
to calculate appellant’s left lower extremity impairment pursuant to the A.M.A., Guides. He noted
that appellant’s diagnosis was tear of the left medial meniscus and osteoarthritis of the left lower
leg and he concluded that appellant had 10 percent permanent impairment of the left lower
extremity based upon 102 degrees of flexion and 20 percent permanent impairment of the left
lower extremity based upon 10 degrees of extension for a combined rating of permanent
impairment of 30 percent. The DMA referenced Section 16.7b, page 548 of the A.M.A., Guides,
which instructs the examiner to add all impairments for a joint. He advised that appellant was
previously awarded eight percent impairment7 of the left lower extremity and would be entitled to
an additional award of 22 percent impairment of the left lower extremity. The DMA assigned
MMI as of November 21, 2013.
By decision dated February 18, 2014, OWCP granted appellant an increased schedule
award for an additional 22 percent left lower extremity impairment for a total award of 30 percent
left lower extremity impairment. The period of the award, equivalent to 63.36 weeks of
compensation, ran from November 21, 2013 to February 7, 2015.

5

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

6

As noted above, OWCP expanded acceptance of appellant’s claim to include localized secondary osteoarthritis of
the left lower extremity.
7

Supra note 3.

3

In a September12, 2016 report, Dr. Sharp noted physical examination findings of the left
knee. He found that appellant had normal motor strength with flexion and extension of the knee.
Appellant had no crepitus, effusion, medial or lateral joint instability and her Lachman’s test was
negative. She lacked 15 degrees of full extension, but had 120 degrees of flexion. Dr. Sharp noted
that appellant reached MMI on January 18, 2013.
On December 15, 2016 appellant filed a claim for an increased schedule award (Form
CA-7).
In a May 17, 2017 report, Dr. Sharp indicated that appellant was seen for evaluation on
September 12, 2016, and noted that she had a left ACL reconstruction with partial lateral
meniscectomy and subsequently developed unicompartmental knee arthritis. He used the
diagnosis-based impairment method (DBI). Dr. Sharp referred to the A.M.A., Guides, Knee
Regional Grid at Table 16-3, page 509 and noted that, for the left knee, the diagnostic key factor
was a meniscal injury with partial meniscectomy, which would result in a class of diagnosis (CDX)
of class 1, with a default value of two percent. He noted a grade modifier for functional history
(GMFH) of 2, a grade modifier for physical examination (GMPE) of 1, and a grade modifier for
clinical studies (GMCS) of 2. Dr. Sharp utilized the net adjustment formula and determined that
the net adjustment was +2, which corresponded with three percent left lower extremity impairment
rating. He further noted that according to Table 16-3, page 511, primary knee joint arthritis, she
would be a CDX of class 1, with a default value of seven percent. Dr. Sharp noted a GMFH of 2
and GMPE of 1 for a net adjustment of +1 or 8 percent left lower extremity impairment rating for
a combined left lower extremity impairment rating of 11 percent.
On August 30, 2018 OWCP forwarded Dr. Sharp’s September 12, 2016 and May 17, 2017
reports to Dr. Arthur S. Harris, an orthopedic surgeon serving as a DMA, for review and
determination of appellant’s entitlement to an increased schedule award. In a September 5, 2018
report, the DMA noted that Dr. Sharp found that appellant had 11 percent left lower extremity
permanent impairment based upon the DBI method by combining impairment for arthroscopic
partial medial meniscectomy and a diagnosis of osteoarthritis. He explained that the Knee
Regional Grid, Table 16-3, page 509, required documented joint space narrowing for impairment
calculation for arthritis; however, Dr. Sharp’s September 12, 2016 and May 17, 2017 reports, did
not document radiographic findings. The DMA advised that he was unable to verify his
impairment calculation based on a diagnosis of arthritis. He further explained that Dr. Sharp
provided an impairment rating for both an arthroscopic partial menisectomy and degenerative
arthritis. The A.M.A., Guides instruct the evaluator to choose the most significant diagnosis and
to rate on that diagnosis using the DBI method and if more than one diagnosis can be used, the
examiner is to use the most clinically accurate impairment. The DMA further noted that the
A.M.A., Guides does not allow an impairment rating due to loss of ROM because the applicable
diagnosis did not contain an asterisk (*) in the DBI grid; therefore, the ROM method was not
applicable. Dr. Harris used the DBI method and referred to Table 16-3 of the A.M.A., Guides
because appellant underwent a partial medial meniscectomy.8 He determined that appellant had
three percent permanent impairment of the left lower extremity, the maximum allowable rating for
a partial medial or lateral meniscectomy. The date of MMI was January 18, 2013. The DMA

8

A.M.A., Guides 494-531.

4

noted that since appellant was previously awarded 30 percent permanent impairment of the left
lower extremity she was not entitled to an increased award.
In a development letter dated January 14, 2019, OWCP advised appellant that the DMA
had found Dr. Sharp’s reports to be deficient. It provided her a copy of the DMA’s report and
afforded her 30 days to submit additional evidence in response to the DMA’s report. No further
evidence was submitted.
By decision dated August 29, 2019, OWCP denied appellant’s claim for an increased
schedule award finding that the evidence of record was insufficient to establish that she sustained
an increase of her permanent impairment due to her accepted employment injury.
LEGAL PRECEDENT
The schedule award provisions of FECA9 and its implementing federal regulations10 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. FECA,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such a determination is a matter, which rests in the
discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized
the use of a single set of tables so that there may be uniform standards applicable to all claimants.
OWCP evaluates the degree of permanent impairment according to the standards set forth in the
specified edition of the A.M.A., Guides, published in 2009.11 The Board has approved the use by
OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes.12
The sixth edition of the A.M.A., Guides provides a DBI method of evaluation utilizing the
World Health Organization’s International Classification of Functioning Disability and Health
(ICF).13 Under the sixth edition, the evaluator identifies the CDX, which is then adjusted by the
GMFH, GMPE, and GMCS.14 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) +

9

5 U.S.C. § 8101 et seq.

10

20 C.F.R. § 10.404.

11
For decisions issued after May 1, 2009, the sixth edition of the A.M.A., Guides is used. A.M.A., Guides (6th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
12
See G.W., Docket No. 19-0430 (issued February 7, 2020); P.R., Docket No. 19-0022 (issued April 9, 2018);
Isidoro Rivera, 12 ECAB 348 (1961).
13

A.M.A., Guides 494-531.

14

Id.

5

(GMCS-CDX).15 Evaluators are directed to provide reasons for their impairment rating, including
the choice of diagnoses from regional grids and the calculation of the modifier score.16
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of
impairment specified.17
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish greater than 30
percent permanent impairment of her left lower extremity, for which she previously received
schedule award compensation.
In support of her request for an increased schedule award, appellant submitted reports from
Dr. Sharp dated September 12, 2016 and May 17, 2017, who opined that appellant had 11 percent
permanent impairment of the left lower extremity based upon the DBI methodology. OWCP
submitted the reports from Dr. Sharp to a DMA who opined that the ratings of Dr. Sharp were
deficient as he had failed to properly apply the A.M.A., Guides. The DMA’s calculations also
established less permanent impairment than the 30 percent previously awarded. The Board notes
that there is no other medical evidence of record establishing greater than 30 percent permanent
impairment.
The Board finds that the record does not contain any medical evidence establishing greater
than the 30 percent permanent impairment of the left lower extremity previously awarded.
Accordingly, appellant has not met her burden of proof to establish entitlement to a schedule award
for a percentage of impairment greater than that previously awarded.18
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 permanent impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish greater than 30
percent permanent impairment of her left lower extremity, for which she previously received
schedule award compensation.

15

Id. at 521.

16

R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011).

17

See supra note 11 at Chapter 2.808.6(f) (March 2017).

18

See T.W., Docket No. 18-0765 (issued September 20, 2019).

6

ORDER
IT IS HEREBY ORDERED THAT the August 29, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 13, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7