United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Blythe, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-1470
Issued: January 24, 2020

Case Submitted on the Record

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

JURISDICTION
On June 28, 2019 appellant filed a timely appeal from a June 6, 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 to
consider the merits of this case.2
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $1,792.94 for the period March 5 through 30, 2019; and (2) whether OWCP properly
1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the June 6, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

found appellant at fault in the creation of the overpayment, thereby precluding waiver of recovery
of the overpayment.
FACTUAL HISTORY
On August 30, 2018 appellant, then a 28-year-old border patrol agent, filed a traumatic
injury claim (Form CA-1) alleging that, on August 22, 2018, he sustained left shoulder strain when
participating in physical training while in the performance of duty. OWCP accepted the claim for
left shoulder superior glenoid labrum lesion and left shoulder bicipital tendinitis. Appellant
received continuation of pay from September 1 through October 15, 2018. OWCP paid wage-loss
compensation for temporary total disability beginning October 16, 2018, and it placed him on the
periodic compensation rolls effective November 11, 2018.
By letter dated November 13, 2018, OWCP advised appellant that he had been placed on
the periodic rolls, outlined his entitlement to compensation benefits, and advised him of his
responsibility to return to work in connection with the accepted injury. In an attached EN1049
form, OWCP provided:
“To minimize the possibility of an overpayment of compensation, NOTIFY THIS
OFFICE IMMEDIATELY WHEN YOU GO BACK TO WORK. If you receive
your compensation payments via paper check, the 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. For payments sent by electronic funds transfer (EFT), a notification of
the date and amount of payment appears on the statement from your financial
institution. You are expected to monitor your EFT deposits carefully, at least every
two weeks. If you have worked for any portion of the period for which a deposit
was made, advise OWCP immediately so that the overpayment can be collected.”
(Emphasis in the original.)
Effective March 5, 2019, appellant resumed full-time, regular-duty work. On or about
March 27, 2019 OWCP terminated appellant’s wage-loss compensation for temporary total
disability. However, on March 30, 2019 it disbursed payment via direct deposit in the amount of
$1,930.86 (net) for the period March 3 through 30, 2019. As appellant was only entitled to
compensation for two days ($137.92) of the 28-day period, OWCP calculated that he had been
overpaid $1,792.94 for the period March 5 through 30, 2019.
In an April 16, 2019 preliminary overpayment determination, OWCP advised appellant
that he had been overpaid $1,792.94 for the period March 5 through 30, 2019 because he returned
to full-duty work on March 5, 2019, but continued to receive compensation for temporary total
disability through March 30, 2019. It also determined that appellant was at fault in the creation of
the overpayment because he had accepted payment that he knew or reasonably should have known
to be incorrect. OWCP informed appellant that he had the right to submit evidence or argument if
he disagreed with its findings. It also informed him that he had a right to a prerecoupment hearing
before an OWCP hearing representative. Additionally, OWCP instructed appellant to complete
an enclosed overpayment recovery questionnaire (Form OWCP-20) and submit supporting
financial documentation.

2

By decision dated June 6, 2019, OWCP finalized its preliminary determination that
appellant received an overpayment of compensation in the amount of $1,792.94 for the period
March 5 through 30, 2019. It determined that appellant was at fault in the creation of the
overpayment, and therefore, he was not entitled to waiver of recovery of the overpayment. OWCP
required recovery in full within 30 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.3
Section 8116(a) of FECA provides that, while an employee is receiving compensation or
if he or she has been paid a lump sum in commutation of installment payments until the expiration
of the period during which the installment payments would have continued, the employee may not
receive salary, pay, or remuneration of any type from the United States, except in limited specified
instances.4 Section 10.500 of OWCP’s regulations provides that 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.5 A
claimant is not entitled to receive temporary total disability (TTD) benefits and actual earnings for
the same time period.6 OWCP procedures provide that an overpayment of compensation is created
when a claimant returns to work, but continues to receive wage-loss compensation for TTD.7
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $1,792.94 for the period March 5 through 30, 2019.
On March 5, 2019 appellant returned to full-time, regular-duty work. However, OWCP
continued to pay him wage-loss compensation for total disability through March 30, 2019. As
noted above, appellant was not entitled to receive compensation for total disability after he returned
to work.8 His March 30, 2019 direct deposit payment of $1,930.86 (net) covered the 28-day period
from March 3 through 30, 2019. Because he was only entitled to two days of compensation

3

5 U.S.C. § 8102(a).

4

Id. at § 8116(a).

5

20 C.F.R. § 10.500(a).

6

See K.K., Docket No. 19-0978 (issued October 21, 2019); C.L., Docket No. 19-0242 (issued August 5, 2019);
K.E., Docket No. 18-0687 (issued October 25, 2018); M.S., Docket No. 16-0289 (issued April 21, 2016); L.S., 59
ECAB 350, 352-53 (2008).
7

K.K., id.; B.H., Docket No. 09-0292 (issued September 1, 2009); Federal (FECA) Procedure Manual, Part 6 -Debt Management, Initial Determinations in an Overpayment, Chapter 6.300.4(g) (September 2018).
8

See supra notes 4-7.

3

($137.92) during that 28-day period,9 OWCP correctly calculated that appellant was overpaid
$1,792.94 for the period March 5 through 30, 2019.10 Appellant has not contested the fact or
amount of the overpayment. The Board thus finds that he received an overpayment of
compensation in the amount of $1,792.94 for the period March 5 through 30, 2019.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) provides that adjustment or recovery by the United States may not be made
when incorrect payment has been made to an individual who is without fault and when adjustment
or recovery would defeat the purpose of FECA or would be against equity and good conscience.11
A claimant who is at fault in the creation of the overpayment is not entitled to waiver.12 On the
issue of fault, 20 C.F.R. § 10.433(a) provides that an individual will be found at fault if he or she
has done any of the following: (1) made an incorrect statement as to a material fact which he or
she knew or should have known to be incorrect; (2) failed to provide information which he or she
knew or should have known to be material; or (3) accepted a payment which he or she knew or
should have known was incorrect.
The Board has held that an employee who receives payments from OWCP in the form of
a direct deposit may not be at fault the first time incorrect funds are deposited into his or her
account, as the acceptance of the resulting overpayment lacks the requisite knowledge.13 The
Board has also held in cases involving a series of incorrect payments, where the requisite
knowledge is established by a letter or telephone call from OWCP, or simply with the passage of
time and a greater opportunity for discovery, the claimant will be at fault for accepting the
payments subsequently deposited.14 Previous cases have held that receiving one erroneous direct
deposit payment does not necessarily create the requisite knowledge to find that a claimant was at
fault in the creation of the overpayment.15
ANALYSIS -- ISSUE 2
The Board finds that appellant was not at fault with regard to the overpayment.
OWCP paid appellant compensation by direct deposit every 28 days. Appellant returned
to work on March 5, 2019. It paid him compensation for the period March 5 through 30, 2019.
There is no documentation or other evidence to demonstrate that appellant had clear knowledge at
9

$1,930.86 ÷ 28 = $68.96 x 2 = $137.92.

10

$1,930.86 - $137.92 = $1,792.94

11

5 U.S.C. § 8129(b).

12
See B.R., Docket No. 18-0339 (issued January 24, 2019); K.E., Docket No. 18-0687 (issued October 25, 2018);
Gregg B. Manston, 45 ECAB 344, 354 (1994); Robert W. O Brien, 36 ECAB 541, 547 (1985).
13

See Tammy Craven, 57 ECAB 689 (2006); see also A.B., Docket No. 18-0922 (issued January 3, 2019).

14

See Tammy Craven, id.; see also S.D., Docket No. 17-0309 (issued August 7, 2018).

15

See D.B., Docket No. 15-0258 (issued February 1, 2016); W.P., 59 ECAB 514 (2008).

4

the time the bank received the March 30, 2019 direct deposit that the payment was incorrect.16
The Board thus finds that appellant was without fault in the creation of the overpayment in the
amount of $1,792.94 from March 5 through 30, 2019.
As such, the Board will set aside the June 6, 2019 decision regarding the issue of fault, and
remand the case to OWCP to determine whether appellant is entitled to waiver of recovery of the
overpayment.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $1,792.94 for the period March 5 through 30, 2019. The Board
further finds that appellant was without fault in the creation of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the June 6, 2019 decision of the Office of Workers’
Compensation Programs is affirmed in part and set aside in part, and the case is remanded for
further action consistent with this decision of the Board.
Issued: January 24, 2020
Washington, DC

Patricia H. Fitzgerald, 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

16
See C.Y., Docket No. 18-0263 (issued September 14, 2018); see also M.M., Docket No. 15-0265 (issued May 27,
2015); Danny E. Haley, 56 ECAB 393 (2005).

5


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

)
)
)
)
)
)
)
)

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

Docket No. 12-1805
Issued: April 3, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On August 29, 2012 appellant filed a timely appeal from a May 22, 2012 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to justify termination of
appellant’s compensation benefits for his accepted injury effective March 21, 2011; and
(2) whether appellant established that he had any continuing disability or residuals relating to his
accepted conditions after March 21, 2011.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On October 15, 2008 appellant, then a 41-year-old letter carrier, filed a recurrence of
disability claim in File No. xxxxxx942 alleging that he experienced low back and right leg
numbness due to prolonged walking and standing. On November 25, 2008 OWCP determined
that he had a new occupational disease and accepted his claim for lumbar intervertebral disc
without myelopathy and sprain of the back and lumbar region. Appellant stopped work on
September 19, 2008 and returned to part-time light duty on October 2, 2008 and full-time limited
duty on January 9, 2009.2
Appellant was treated by Dr. Zhao M. Huang, a Board-certified physiatrist. In a June 10,
2008 report, Dr. Huang advised that appellant had a work-related injury in April 2008. He noted
diagnoses that included lumbar sprain and opined that appellant was totally disabled from his
work injury. In reports dated March 5 to October 1, 2009, Dr. Huang noted positive findings
upon examination and diagnosed lumbar sprain and strain with discogenic lower back pain, right
lumbar L4-5 radiculopathy and right sacroiliac joint dysfunction. He recommended physical
therapy and opined that appellant was partially disabled. In an October 27, 2009 duty status
report, Dr. Huang returned appellant to full-time work with restrictions.
On January 12, 2010 OWCP referred appellant to Dr. Sanford R. Wert, a Board-certified
orthopedist, for a second opinion. In an February 5, 2010 report, Dr. Wert noted that the
examination revealed a normal gait, no tenderness or muscle spasm of the lumbar spine, limited
range of motion of the lumbar spine, negative straight leg raises, no atrophy, reflexes were equal
and symmetrical bilaterally and normal muscle testing in the upper and lower extremities. He
diagnosed aggravation of preexisting injury of the lumbar spine and sprain/strain of the
lumbosacral spine. Dr. Wert opined that appellant sustained a temporary aggravation of the
preexisting lumbar spine injury which resolved. He noted that appellant was able to work full
duty as a letter carrier without restrictions. In a work capacity evaluation Dr. Wert opined that
appellant could return to his date-of-injury position without restrictions.
Appellant submitted a March 30, 2010 report from Dr. Huang who noted findings of
tenderness between L4-5 and L5-S1, limited range of motion, positive leg raises on the right side
and decreased muscle strength with intact sensory testing. Dr. Huang diagnosed lumbar sprain
and strain with discogenic lower back pain, right lumbar L4-5 radiculopathy and right sacroiliac
joint dysfunction. He recommended physical therapy and opined that appellant was temporarily
and partially disabled.
On April 16, 2010 OWCP requested that Dr. Wert provide clarification of his report,
asking that he address whether appellant had any residuals of his condition. In an April 26, 2010
report, Dr. Wert noted that appellant had sustained a temporary aggravation of the preexisting
lumbar spine injury. He opined that there were no disabling residuals of the accepted conditions
present as the examination revealed no abnormalities.
2

Appellant filed a claim for an injury sustained on April 2, 2008, which was accepted for sprain of the back,
lumbar region, File No. xxxxxx942 and a claim for an injury sustained on November 1, 2010 which was accepted
for lumbar sprain and lumbar radiculopathy at L4, L5, File No. xxxxxx616. On February 1, 2011 OWCP combined
claim File Nos. xxxxxx616, xxxxxx942 and xxxxxx911.

2

Appellant continued to submit reports from Dr. Huang dated July 6 and October 7, 2010,
who noted findings of tenderness between L4-5 and L5-S1 spinous process and the bilateral
lumbosacral paraspinal muscles, limited range of motion, positive leg raises on the right side and
decreased muscle strength. Dr. Huang diagnosed lumbar sprain and strain with discogenic lower
back pain, right lumbar L4-5 radiculopathy and right sacroiliac joint dysfunction. He opined that
appellant was temporarily and partially disabled.
OWCP found that a conflict of medical opinion existed between Dr. Huang, who
indicated that appellant sustained residuals of his work-related injuries and was partially disabled
and Dr. Wert, who determined that appellant’s accepted conditions had resolved and he could
return to work without restrictions related to his accepted injuries.
To resolve the conflict, on October 26, 2010, OWCP referred appellant to Dr. Jerrold M.
Gorski, a Board-certified orthopedist. In a November 15, 2010 report, Dr. Gorski noted
reviewing the record, including the history of appellant’s work injury and examining appellant.
Examination revealed ambulation without difficulty, negative straight leg raising, negative
Lasegue’s maneuver, pain with range of motion of the lumbar spine and increased numbness in
the right leg. Dr. Gorski noted findings of symptom magnification. He opined that appellant
sustained a temporary mild disability as a result of his accepted work injuries which had
completely resolved. Dr. Gorski opined that appellant’s work-related injuries ceased and that he
would return to his preinjury status in four to six weeks and then return to work full-time regular
duty. He advised that appellant did not require additional physical therapy. In a work capacity
evaluation Dr. Gorski noted that appellant could return to work part time, four hours per day with
restrictions for one month.
Appellant submitted reports from Dr. Huang dated October 7 to November 1, 2010 who
noted positive findings upon examination and diagnosed lumbar sprain and strain with
discogenic lower back pain, right lumbar L4-5 radiculopathy and right sacroiliac joint
dysfunction. Dr. Huang recommended physical therapy and opined that appellant was partially
disabled. In a November 1, 2010 duty status report, he noted that appellant was totally disabled.
Also submitted was a November 15, 2010 report from Dr. Yuanze Hong, a Board-certified
physiatrist, who noted that appellant reported improved low back pain and radicular pain. He
noted positive findings upon examination and diagnosed acute aggravation of lower back pain
secondary to lumbar sprain/strain with discogenic low back pain, right lumbar L4, L5
radiculopathy and right sacroiliac joint dysfunction. Dr. Hong opined that appellant was totally
disabled.
On January 25, 2011 OWCP requested Dr. Gorski to clarify his opinion and requested
that he address whether appellant was at maximum medical improvement and if he could return
to his date-of-injury position. In February 8, 2011 report, Dr. Gorski noted reexamining
appellant who complained of right lower back pain. Appellant declined to perform a squat for
fear of injuring his back although visual inspection of the back was unrevealing and examination
was essentially normal. Dr. Gorski noted findings of a normal gait, normal straight leg raises
bilaterally, no sensory deficits in the lower extremity and symptomatic overlay with
magnification. He opined that appellant reached maximum improvement, that he had been
working five hours daily but could advance to full-time, full-duty work with restrictions on
excessive lifting. Dr. Gorski opined that appellant seemed to have a low threshold for

3

symptomatology but that his mild partial disability had resolved and that he could work full-time
full duty. He advised that appellant needed no further orthopedic attention or physical therapy.
In an accompanying February 8, 2011 work capacity evaluation, Dr. Gorski opined that appellant
could perform his usual job and had no restrictions.
Appellant submitted a December 31, 2010 report from Dr. Tsai C. Chao, a Boardcertified physiatrist, who noted positive findings upon examination and diagnosed acute
aggravation of lower back pain secondary to lumbar sprain with discogenic lower back pain,
right lumbar L4-5 radiculopathy and right sacroiliac joint dysfunction. Dr. Chao recommended
physical therapy and opined that appellant was temporarily and partially disabled.
On February 18, 2011 OWCP issued a notice of proposed termination of compensation
and medical benefits based on Dr. Gorski’s reports.
Appellant submitted a February 25, 2011 statement and asserted that Dr. Gorski did not
treat him fairly during the examination and that there was a language barrier because English
was his second language. He requested another examination with a physician who spoke
Cantonese or with a translator present. Appellant submitted a February 22, 2011 report from
Dr. Huang who noted positive findings upon examination and diagnosed aggravation of lower
back pain secondary to lumbar sprain and strain with discogenic lower back pain, right lumbar
L4-5 radiculopathy and right sacroiliac joint dysfunction. Dr. Huang recommended physical
therapy and opined that appellant was partially disabled.
In a March 21, 2011 decision, OWCP terminated appellant’s compensation and medical
benefits effective the same day, finding that Dr. Gorski’s reports represented the weight of the
medical evidence and established that appellant had no continuing residuals of his accepted
injuries.
On April 16, 2011 appellant requested an oral hearing which was held on August 2, 2011.
He submitted a January 29, 2011 duty status report from Dr. Huang who diagnosed aggravated
lumbar sprain, discogenic disease and opined that appellant could return to work part time with
restrictions. In an April 23, 2011 report, Dr. Huang noted positive findings upon examination
and diagnosed aggravation of lower back pain secondary to lumbar sprain and strain with
discogenic lower back pain, right lumbar L4-5 radiculopathy and right sacroiliac joint
dysfunction. He recommended physical therapy and opined that appellant was partially disabled.
An April 20, 2011 magnetic resonance imaging (MRI) scan of the lumbar spine revealed lateral
disc herniation at L2-3, diffuse disc bulge and lateral herniation at L4-5 and a central annular tear
and disc herniation at L5-S1.
The employing establishment submitted a statement from a health and resource
management specialist who noted that appellant attended two examinations with Dr. Gorski and
did not report a language problem until he received a notice of proposed termination. She noted
that appellant’s preemployment file showed that his basic English competence was good. Also
submitted was a statement from Bob Denaro, supervisor of customer service, who supervised
appellant for over seven years and was unaware of appellant’s communication barrier and noted
that he understood instructions and completed tasks assigned without question.

4

In a decision dated September 14, 2011, an OWCP hearing representative affirmed the
March 21, 2011 decision.
On February 22, 2012 appellant requested reconsideration. In a January 9, 2012 letter,
appellant through his union representative, advised that he experienced communication
difficulties with management and he filed grievances. He submitted a January 16, 2012
statement from his wife who indicated that she served as translator for him when communicating
with the case manager. Appellant submitted statements dated February 16 and 21, 2006, which
asserted that he was required to finish his work assignment under unreasonable time constraints
and was fearful of losing his job. In a February 22, 2012 statement, appellant asserted that he
had a language barrier when being examined by Dr. Gorski and had difficulty articulating and
understanding questions.
In a decision dated May 22, 2012, OWCP denied modification of the prior decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits.3 After it has determined that an employee has disability causally
related to his or her federal employment, OWCP may not terminate compensation without
establishing that the disability has ceased or that it is no longer related to the employment.4 The
right to medical benefits for an accepted condition is not limited to the period of entitlement for
disability. To terminate authorization for medical treatment, OWCP must establish that a
claimant no longer has residuals of an employment-related condition, which requires further
medical treatment.5
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim for work-related sprain of the back and lumbar region,
lumbar radiculopathy at L4-5 and lumbar intervertebral disc without myelopathy. Appellant
stopped work on September 19, 2008 and returned to part-time light duty on October 2, 2008 and
full-time limited duty on January 9, 2009.
OWCP determined that a medical conflict existed between appellant’s attending
physician, Dr. Huang, who indicated that appellant sustained residuals of his work-related
injuries and was disabled from work and Dr. Wert, who determined that appellant’s accepted
conditions had resolved and he could return to work without restrictions related to his accepted
injuries. Consequently, OWCP referred appellant to Dr. Gorski to resolve the conflict.
The Board finds that the opinion of Dr. Gorski is sufficiently well rationalized and based
upon a proper factual background such that it is entitled to special weight and establishes that
residuals of appellant’s work-related conditions have ceased. Where there exists a conflict of
3

Gewin C. Hawkins, 52 ECAB 242 (2001); Alice J. Tysinger, 51 ECAB 638 (2000).

4

Mary A. Lowe, 52 ECAB 223 (2001).

5

Id.; Leonard M. Burger, 51 ECAB 369 (2000).

5

medical opinion and the case is referred to an impartial specialist for the purpose of resolving the
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, is entitled to special weight.6
In a November 15, 2010 report, Dr. Gorski reviewed appellant’s history, reported
findings and noted that appellant exhibited no objective complaints or findings due to the
accepted conditions. He opined that the physical examination was normal and appellant did not
have residuals of the accepted work-related condition of sprain of the back and lumbar region,
lumbar radiculopathy at L4-5 and lumbar intervertebral disc without myelopathy. In view of the
normal findings, Dr. Gorski opined that appellant magnified his symptoms. He opined that
appellant sustained a temporary mild disability as a result of his accepted work injuries which
completely resolved and he could return to full-time, full-duty work. Dr. Gorski advised that
appellant did not require additional physical therapy. In a February 8, 2011supplemental report,7
he noted reexamining appellant and noted findings of symptomatic overly with magnification.
Dr. Gorski opined that appellant reached maximum improvement and his temporary disability
resolved and noted that he could return to full-time, full duty and no longer needed orthopedic
treatment or physical therapy. He found no basis on which to attribute any continuing condition
to appellant’s employment.
The Board finds that Dr. Gorski had full knowledge of the relevant facts and evaluated
the course of appellant’s condition. He is a specialist in the appropriate field. At the time wageloss benefits were terminated Dr. Gorski clearly opined that appellant had no work-related reason
for disability. His opinion as set forth in his reports of November 15, 2010 and February 8, 2011
is probative evidence and reliable. The Board finds that Dr. Gorski’s opinion constitutes the
weight of the medical evidence and is sufficient to justify OWCP’s termination of wage-loss and
medical benefits for the accepted conditions.
After Dr. Gorski’s examination appellant submitted reports from Dr. Huang dated
October 7, 2010 to February 22, 2011 who noted findings on examination, diagnoses and
appellant’s disability status. Similarly, on November 15, 2010 appellant was treated by
Dr. Hong who noted diagnoses and appellant’s disability status. Likewise, on December 31,
2010 Dr. Chao diagnosed acute aggravation of lower back pain secondary to lumbar sprain with
discogenic lower back pain, right lumbar L4-5 radiculopathy and right sacroiliac joint
dysfunction. Dr. Huang opined that appellant was partially disabled. However, Drs. Huang,
Hong and Chao did not specifically address how any accepted conditions remained symptomatic
and caused continuing disability. The Board has found that vague and unrationalized medical
opinions on causal relationship have little probative value.8 The Board also notes that OWCP

6

Solomon Polen, 51 ECAB 341 (2000). See 5 U.S.C. § 8123(a).

7

See Guiseppe Aversa, 55 ECAB 164 (2003) (where OWCP secures an opinion from an impartial medical
specialist for the purpose of resolving a conflict in the medical evidence and the opinion from such specialist
requires clarification or elaboration, OWCP has the responsibility to secure a supplemental report from the specialist
for the purpose of correcting the defect in the original opinion).
8

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).

6

did not accept sacroiliac joint dysfunction as being work related.9 Additionally, Dr. Huang’s
reports are similar to his prior reports and are insufficient to overcome that of Dr. Gorski or to
create a new medical conflict.10
Consequently, the medical evidence submitted after Dr. Gorski’s reports is insufficient to
overcome his report or to create another conflict in the medical evidence. The Board finds that
Dr. Gorski’s opinion constitutes the weight of the medical evidence and is sufficient to justify
OWCP’s termination of appellant’s compensation benefits.
Appellant asserted that there was a language barrier when being examined by Dr. Gorski.
However, the record is void of any contemporaneous evidence that he had any difficulty
communicating with Dr. Gorski during his two examinations or with his own physician. There
was no evidence of record that appellant requested assistance during the examinations or after
the examinations.
Rather, the record includes three letters submitted by him dated
February 15 to 21, 2006, which demonstrate a clear understanding of the English language, a
statement from a health and resource management specialist who noted that appellant’s
preemployment file showed that his basic English competence was good and a statement from
appellant’s supervisor of several years, Mr. Denaro, who noted that appellant understood
instructions and completed tasks assigned without question.
LEGAL PRECEDENT -- ISSUE 2
As OWCP met its burden of proof to terminate appellant’s compensation benefits, the
burden shifted to appellant to establish that he had continuing disability causally related to his
accepted employment injury.11 To establish causal relationship between the claimed disability
and the employment injury, appellant must submit rationalized medical opinion evidence based
on a complete factual and medical background supporting such a causal relationship.12
ANALYSIS -- ISSUE 2
The Board finds that appellant has not established that he has any continuing residuals of
his work-related sprain of the back and lumbar region, lumbar radiculopathy at L4-5 and lumbar
intervertebral disc without myelopathy, on or after March 21, 2011.
After the termination of benefits on March 21, 2011 appellant submitted a January 29,
2011 duty status report from Dr. Huang who made diagnoses and opined that appellant could
return to work part time with restrictions. Similarly, in an April 23, 2011 report, Dr. Huang
9

See Jaja K. Asaramo, 55 ECAB 200 (2004) (for conditions not accepted or approved by OWCP, the claimant
bears the burden of proof to establish that the condition is causally related to the employment injury).
10

See Michael Hughes, 52 ECAB 387 (2001); Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992); Dorothy
Sidwell, 41 ECAB 857 (1990). The Board notes that Dr. Huang’s reports do not contain new findings or rationale
upon which a new conflict might be based.
11

See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Manuel Gill, 52 ECAB 282 (2001).

12

Daniel F. O’Donnell, Jr., 54 ECAB 456 (2003).

7

diagnosed aggravation of lower back pain secondary to lumbar sprain and strain with discogenic
lower back pain, right lumbar L4-5 radiculopathy and right sacroiliac joint dysfunction. He
opined that appellant was temporarily and partially disabled. However, none of Dr. Huang’s
reports provide medical reasoning to explain how any continuing residual condition was causally
related to the accepted work conditions. The Board has found that vague and unrationalized
medical opinions on causal relationship have little probative value.13 Other reports, including the
April 20, 2011 MRI scan of the lumbar spine, failed to provide an opinion on how any
continuing residual condition was causally related to the accepted work conditions. For this
reason, this evidence is not sufficient to meet appellant’s burden of proof.
None of the reports submitted by appellant after the termination of benefits included a
rationalized opinion regarding the causal relationship between his current condition and his
accepted work-related conditions. Consequently, appellant did not establish that he had any
employment-related condition or disability after March 21, 2011.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate benefits effective
March 21, 2011 and that appellant failed to establish that he had any continuing disability due to
his accepted condition after March 21, 2011.

13

See Jimmie H. Duckett, supra note 8. The Board notes that Dr. Huang’s reports do not contain new findings or
rationale upon which a new conflict might be based; see Michael Hughes, supra note 10.

8

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 22, 2012 is affirmed.
Issued: April 3, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.A., Appellant
and
DEPARTMENT OF THE NAVY, DEFENSE
CONTRACT MANAGEMENT DISTRICT
OFFICE, Camarillo, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Suzanne Ware, for the appellant
Office of Solicitor, for the Director

Docket No. 15-292
Issued: April 9, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 14, 2014 appellant, through her representative, filed a timely appeal from
an October 3, 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
501.3,2 the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant received an overpayment in compensation in the
amount of $35,876.27 because she concurrently received Social Security Administration (SSA)
benefits for the period March 1, 2007 to August 23, 2014 while receiving FECA benefits;
(2) whether OWCP properly denied waiver of the overpayment; and (3) whether OWCP properly
1
2

5 U.S.C. §§ 8101-8193.

The Board notes that appellant submitted evidence with her appeal to the Board. The Board cannot consider this
evidence as its jurisdiction is limited to the evidence of record that was before OWCP at the time it issued its final
decision. 20 C.F.R. § 501.2(c)(1); P.W., Docket No. 12-1262 (issued December 5, 2012).

required repayment of the overpayment by deducting $118.83 every 28 days from appellant’s
continuing compensation.
On appeal, appellant’s representative, asserts that appellant did not understand the
preliminary overpayment notification due to mental illness and failing health and, therefore, did
not timely submit the requested information. She stated that appellant was not aware that she
was being overpaid and lives on a very strict budget.
FACTUAL HISTORY
On August 30, 1991 appellant, then a 50-year-old former clerk typist, filed an
occupational disease claim alleging that work factors caused depression and anxiety. She had
stopped work on May 24, 1991. An SF 50 form found in the record indicates that appellant’s
retirement plan was Federal Employees’ Retirement System (FERS). On September 8, 1992
OWCP accepted that she sustained precipitation of an episode of bipolar disorder. Appellant
received appropriate compensation and was placed on the periodic compensation rolls.
In February 1993 appellant was referred for vocational rehabilitation services. She began
vocational training in May 1993, which she completed in October 1993. Appellant did not return
to work and continued to receive wage-loss compensation. She moved from California to Texas
in 2006.
Appellant signed OWCP 1032 forms from June 10, 2007 to June 18, 2014, on which she
indicated that she was not receiving SSA benefits.
In a July 7, 2014 treatment note, Dr. Yee Yee Thein, an attending Board-certified
psychiatrist, indicated that appellant stated she was doing well. He indicated that she reported
financial stress and health concerns. Appellant was alert, with no mania or depression, and on
examination Dr. Thein found her cooperative, with a fair mood and better affect. There was no
abnormal thought content present, and her insight, judgment, attention, and language were intact.
Dr. Thein’s impression was that appellant’s mood was stable but that she seemed to be
physically deteriorating. He recommended supportive therapy, continued medication, and that
she return in six months.3
In July 2014 OWCP began development of whether appellant was receiving dual benefits
from FECA and SSA. On August 12, 2014 SSA provided information regarding her SSA rate
with and without federal retirement (FERS) benefits, effective March 2007. On August 28, 2014
OWCP informed appellant that her FECA benefits were being reduced to reflect the contribution
to her SSA benefits, effective August 24, 2014.
On September 2, 2014 OWCP issued a preliminary finding that an overpayment of
compensation in the amount of $35,867.28 had been created. It explained that the overpayment
3

The record did not contain a medical report between August 20, 2012 and July 7, 2014. In the August 20, 2012
report, Dr. Thein indicated that he began treating appellant on September 6, 2009 for bipolar disorder. He described
her medication and indicated that she was compliant with treatment and needed ongoing treatment and medication
management.

2

occurred because a portion of appellant’s SSA benefits, received from March 1, 2007 through
August 23, 2014, was based on credits earned while working in the Federal Government, and
that this portion of her SSA benefit was a prohibited dual benefit. OWCP found appellant
without fault in creating the overpayment. The preliminary decision provided an explanation of
the calculation of the overpayment. Appellant was provided an overpayment action request and
an overpayment questionnaire. She was informed of the actions she could take and was allotted
30 days to respond. An August 25, 2014 offset calculation worksheet indicated that the FERS
offset for the period March 1, 2007 through August 23, 2014 totaled $35,876.28.
On September 26, 2014 appellant’s representative called OWCP. She stated that
appellant was in the hospital. The daughter was informed that an authorization of representation
was required.
Appellant did not respond to the preliminary overpayment letter. By decision dated
October 3, 2014, OWCP finalized the preliminary overpayment decision, finding that she
received an overpayment in compensation in the amount of $35,876.28 and, while she was not at
fault, she was not entitled to waiver of the overpayment because she failed to provide the
requested information. Repayment in the amount of $118.83 was to be deducted from her
continuing compensation, per compensation period.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.4 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.5 Section 10.421 of the implementing
regulations provide that an employee may not receive compensation for total disability
concurrently with separation pay.6 FECA Bulletin No. 97-9 states that FECA benefits have to be
adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned as a
federal employee is part of the FERS retirement package, and the receipt of FECA benefits and
federal retirement concurrently is a prohibited dual benefit.7 When OWCP discovers concurrent
receipt of benefits, it must declare an overpayment in compensation and give the usual due
process rights.8

4

5 U.S.C. § 8102(a).

5

Id. at § 8116(a).

6

20 C.F.R. § 10.421(d); see L.J., 59 ECAB 264 (2007).

7

FECA Bulletin No. 97-9 (issued February 3, 1997).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.17.d(4) (April 1996).

3

ANALYSIS -- ISSUE 1
The record supports that appellant received FECA wage-loss compensation beginning in
1991 and that she received SSA benefits beginning on March 1, 2007. The portion of the SSA
benefits she earned as a federal employee was part of her FERS retirement package, and the
receipt of benefits under FECA and federal retirement benefits concurrently is a prohibited dual
benefit.9 Appellant’s FECA compensation was not offset until August 24, 2014. The SSA
notified OWCP of the applicable SSA rates for appellant and their effective dates. Based on
these rates, OWCP was able to calculate the dual benefit that she received from March 1, 2007
through August 23, 2014 which yielded an overpayment of compensation in the amount of
$35,876.27. The record includes an overpayment worksheet explaining the overpayment
calculation.10
The Board has reviewed OWCP’s calculations of the dual benefits appellant received for
the period March 1, 2007 through August 23, 2014 and finds that she received dual benefits
totaling $35,876.27 for this period, thus creating an overpayment in compensation in that
amount.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”11 Section 10.438 of OWCP regulations provide that [t]he individual who
received the overpayment is responsible for providing information about income, expenses, and
assets as specified by OWCP. This information is needed to determine whether or not recovery
on an overpayment would defeat the purpose of FECA or be against equity and good
conscience.12 Failure to submit the requested information within 30 days of the request shall
result in denial of waiver.13
9

Supra note 7.

10

The August 25, 2014 offset worksheet lists the overpaid amounts for particular periods. These sums total
$35,876.27. The Board notes that the worksheet contains a minor computation error. Computing the FERS offset
for appropriate periods indicates that the total overpayment is $35,876.27, not $35,876.28.
11

5 U.S.C. § 8129.

12

Recovery of an overpayment will defeat the purpose of FECA if such recovery would cause hardship to a
currently or formerly entitled beneficiary because: (a) the beneficiary from whom OWCP seeks recovery needs
substantially all of his or her current income (including compensation benefits) to meet current or ordinary and
necessary living expenses; and (b) the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data furnished by the Bureau of Labor Statistics. 20 C.F.R. § 10.436. Recovery of an overpayment is
considered to be against equity and good conscience when an individual who received an overpayment would
experience severe financial hardship attempting to repay the debt; and when an individual, in reliance on such
payments or on notice that such payments would be made, gives up a valuable right or changes his or her position
for the worse. Id. at § 10.437.
13

20 C.F.R. § 10.438.

4

ANALYSIS -- ISSUE 2
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience.14 Appellant,
however, had the responsibility to provide financial information to OWCP,15 and did not do so.
In its preliminary determination dated September 2, 2014, OWCP clearly explained the
importance of providing the requested financial information and advised appellant that it would
deny waiver if she failed to furnish the requested financial information within 30 days.
Appellant did not submit a completed overpayment questionnaire or otherwise submit financial
information supporting her income and expenses at any time. As a result, OWCP did not have
the necessary financial information to determine if recovery of the overpayment would defeat the
purpose of FECA or if recovery would be against equity and good conscience.
While appellant’s representative asserts on appeal that appellant did not understand the
preliminary determination due to mental illness and failing health, the most recent medical
evidence of record, a report from Dr. Thein dated July 7, 2014, indicated that, although appellant
reported financial stress and health concerns, she was alert, with no mania or depression. On
examination Dr. Thein found her cooperative, with no abnormal thought content. He advised
that appellant’s insight, judgment, attention, and language were intact. There is no additional
contemporaneous medical evidence regarding appellant’s mental or physical condition.
Consequently, as appellant did not submit the financial information required under
section 10.438 of OWCP regulations, which was necessary to determine her eligibility for
waiver, OWCP properly denied waiver of recovery of the overpayment in compensation in the
amount of $35,876.27.
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP’s regulations provide that when an overpayment has been made
to an individual who is entitled to further payments, the individual shall refund to OWCP the
amount of the overpayment as soon as the error is discovered or his or her attention is called to
the same. If no refund is made, OWCP shall decrease later payments of compensation, taking
into account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual and any other relevant factors, so as to minimize hardship.16
ANALYSIS -- ISSUE 3
Although OWCP provided an overpayment recovery questionnaire with the September 2,
2014 preliminary finding, appellant did not submit a completed questionnaire or other financial
14

Supra note 12.

15

Supra note 13.

16

20 C.F.R. § 10.441; see Steven R. Cofrancesco, 57 ECAB 662 (2006).

5

information that OWCP requested prior to the final October 3, 2014 overpayment decision. The
overpaid individual is responsible for providing information about income, expenses, and assets
as specified by OWCP.17 When an individual fails to provide requested financial information,
OWCP should follow minimum collection guidelines designed to collect the debt promptly and
in full.18 As appellant did not submit any financial information to OWCP as requested, the
Board finds that there is no evidence in the record to show that OWCP erred in directing
recovery at a rate of $118.83 from her continuing compensation.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $35,876.27, that OWCP properly denied waiver of the overpayment, and that OWCP properly
required repayment from appellant’s continuing compensation payments.
ORDER
IT IS HEREBY ORDERED THAT the October 3, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: April 9, 2015
Washington, DC

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

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

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

17

Id. at §10.438.

18

Frederick Arters, 53 ECAB 397 (2002); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial
Overpayment Actions, Chapter 6.200.4(c)(2) (September 1994).

6


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

)
)
)
)
)
)
)
)

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

Docket No. 12-328
Issued: August 17, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On December 5, 2011 appellant filed a timely appeal from a July 15, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration. Because more than 180 days elapsed from the most recent merit decision dated
September 21, 2010 to the filing of this appeal, the Board lacks jurisdiction to review the merits
of this case but has jurisdiction over the nonmerit decision pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101-8193.

Appellant requested an oral argument. The Clerk of the Board mailed a letter to him to confirm a continuing
desire for an oral argument in Washington, D.C. No written confirmation was received; thus the Board has decided
the appeal on the record.

FACTUAL HISTORY
On June 30, 2008 appellant, then a 63-year-old city carrier, fell and injured his right
shoulder while delivering his route. OWCP accepted his claim for contusion of right shoulder
and upper arm and right shoulder rotator cuff tear. Appellant underwent an authorized right
arthroscopic surgery on April 1, 2009 which included debridement of rotator cuff tear,
subacromial decompression and distal clavicle resection. OWCP paid medical and wage-loss
benefits.
On September 1, 2009 appellant requested a schedule award. In an October 8, 2009
report, Dr. John L. Graves, a Board-certified orthopedic surgeon, stated that appellant was at
maximum medical improvement and had 15 percent impairment to the right shoulder due to
acromioplasty, distal clavicle resection and chronic rotator cuff problems. On November 10,
2009 an OWCP medical adviser reviewed the medical record and Dr. Graves’ October 8, 2009
report and opined that appellant had 11 percent impairment of the right upper extremity under
the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides).
By decision dated December 7, 2009, OWCP issued a schedule award for 11 percent
permanent impairment of the right upper extremity. The award ran for a total of 34.32 weeks for
the period October 8, 2009 through June 6, 2010.
On January 5, 2010 appellant requested a telephonic hearing. In a January 21, 2010
report, Dr. Graves submitted examination findings, including range of motion findings. He
noted appropriate tables under the A.M.A., Guides and opined that appellant had 15 percent right
arm impairment for full thickness tear of rotator cuff irreparable surgically and status post distal
clavicle resection.
In a February 19, 2010 decision, an OWCP hearing representative set aside the
December 7, 2009 decision and remanded it for a supplemental report from the medical adviser.
In a March 1, 2010 report, the medical adviser reviewed the medical record along with
Dr. Graves’ January 21, 2010 report. He noted that Dr. Graves assigned 5 percent impairment
for rotator cuff tear and 10 percent for distal clavicle resections for arthritis, which an accepted
condition. Therefore, the medical adviser opined that the 15 percent impairment rating to the
right upper extremity in Dr. Graves’ January 21, 2010 report was not valid. He stated that a
significant portion of loss of range of motion of the right shoulder could be accepted as a standalone impairment under page 473 of the A.M.A., Guides, which he calculated as 11 percent right
upper extremity impairment. Thus, the medical adviser opined that there was no additional
impairment over the previously awarded 11 percent right upper extremity impairment.
By decision dated March 23, 2010, OWCP denied appellant’s claim for a schedule award
greater than the previously awarded 11 percent permanent impairment of the right upper
extremity.

2

On April 7, 2010 appellant requested a telephone hearing which was held on
August 3, 2010. His attorney argued that the acromioclavicular (AC) joint arthritis was
aggravated by the work injury and should be included in the impairment rating.
In a July 16, 2010 report, Dr. Graves noted that there had been some concern as to
whether the AC joint issue was related to appellant’s work injury. He opined that, prior to the
work-related injury, appellant had no pain in his shoulder. At that time, appellant was noted to
have some AC joint tenderness and his x-rays showed AC joint spurring. He opined that the AC
joint arthritis had been present prior to the injury, but was not symptomatic until his fall.
Appellant’s surgery involved a distal clavicle resection, which should be included in his
compensation/rating postoperatively from the on-the-job injury.
By decision dated September 21, 2010, an OWCP hearing representative affirmed the
March 23, 2010 schedule award decision. The hearing representative also found that the medical
evidence of record relating to the additional condition of aggravation of AC joint arthritis was
not causally related to the accepted work injury and thus could not be included in the schedule
award.
On January 27 and June 25, 2011 appellant requested reconsideration. He stated that
Dr. Graves has never backed away from his 15 percent impairment rating of the right upper
extremity. Appellant additionally noted that OWCP used Dr. Graves for second opinion
evaluations. Also provided was a November 2, 2010 report from Dr. Graves who opined that
appellant’s diagnoses related to his work injury should be right rotator cuff tear and AC joint
arthritis, as his work-related injury exacerbated those conditions.
By decision dated July 15, 2011, OWCP denied appellant’s reconsideration request on
the grounds that his request was insufficient to warrant a review of its prior decision.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a), OWCP’s
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.3 Section 10.608(b) of OWCP’s regulations
provide that, when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.4 The Board has found that
evidence that repeats or duplicates evidence already in the case record has no evidentiary value.5

3

20 C.F.R. § 10.606(b)(2); D.K., 59 ECAB 141 (2007).

4

Id. at § 10.608(b); K.H., 59 ECAB 495 (2008).

5

See Daniel Deparini, 44 ECAB 657 (1993).

3

ANALYSIS
Appellant requested reconsideration of OWCP’s September 21, 2010 decision which
affirmed a schedule award determination of 11 percent permanent impairment of the right upper
extremity and denied his claim of arthritis as work related. His request for reconsideration
neither alleged nor demonstrated that OWCP erroneously applied or interpreted a specific point
of law. Appellant did not advance a relevant legal argument not previously considered by
OWCP. The fact that Dr. Graves may or may not perform second opinion evaluations for
OWCP is not pertinent to the underlying issue of whether OWCP properly determined
appellant’s permanent impairment. Appellant is not entitled to a review of the merits of his
claim based on the first and second above-noted requirements under section 10.606(b)(2).
Appellant also did not submit relevant and pertinent new evidence not previously
considered by OWCP. The November 2, 2010 medical report from Dr. Graves, while new, is not
relevant as he does not specifically address appellant’s degree of permanent impairment pursuant
to the A.M.A., Guides. Dr. Graves merely stated that appellant’s diagnoses related to his work
injury should be right rotator cuff tear and AC joint arthritis. This report is also duplicative of
Dr. Graves’ July 16, 2010 report with regard to his opinion as to which conditions were work
related.6
The evidence submitted by appellant did not show that OWCP erroneously applied or
interpreted a specific point of law; advance a relevant legal argument not previously considered
or constitute relevant and pertinent new evidence not previously considered by OWCP. As
appellant did not meet any of the necessary regulatory requirements, the Board finds that he is
not entitled to further merit review.7
On appeal, appellant argued that Dr. Graves’ November 2, 2010 report showed that
additional diagnoses should have been accepted as he clearly explained what his diagnoses were
and how the diagnoses were aggravated by appellant’s work injury. The Board notes that
appellant’s argument goes to the merits of the case, over which it has no jurisdiction.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for further review of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

6

Id.

7

M.E., 58 ECAB 694 (2007) (when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for reconsideration without
reopening the case for a review on the merits).

4

ORDER
IT IS HEREBY ORDERED THAT the July 15, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 17, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Providence, RI, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
James F. Malatos, for the appellant
Office of Solicitor, for the Director

Docket No. 09-2103
Issued: June 1, 2010

Case Submitted on the Record

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

JURISDICTION
On August 24, 2009 appellant filed a timely appeal from a March 19, 2009 decision of
the Office of Workers’ Compensation Programs denying her request for reconsideration.
Because more than one year has elapsed from the most recent merit decision dated February 11,
2008 to the filing of this appeal on August 24, 2009, the Board lacks jurisdiction to review the
merits of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.1
ISSUE
The issue is whether the refusal of the Office to review the merits of appellant’s claim
constituted an abuse of discretion, pursuant to 5 U.S.C. § 8128(a).
On appeal appellant, through her representative, contends that she has an emotional
condition causally related to her federal employment.

1

For final adverse decisions of the Office issued before November 19, 2008, a claimant has up to one year to
appeal to the Board. See 20 C.F.R. § 501.3(e).

FACTUAL HISTORY
On December 18, 2006 appellant, then a 57-year-old postmaster, filed an occupational
disease claim alleging that she sustained post-traumatic stress disorder and major depressive
disorder/generalized anxiety disorder as a result of her federal employment. In a February 16,
2007 statement, she contended that her emotional condition was caused by several incidents,
which occurred at different postal locations.2 Appellant submitted medical evidence in support
of her claim.
In a June 20, 2007 decision, the Office denied appellant’s claim finding that she failed to
establish a compensable factor of employment giving rise to her claimed condition. On
September 21, 2007 appellant requested reconsideration. In a February 11, 2008 decision, the
Office denied modification of its June 20, 2007 decision after merit review.
By letter dated October 17, 2008, received by the Office on October 22, 2008, appellant
again requested reconsideration.
By decision dated March 19, 2009, the Office denied reconsideration without reviewing
the merits of the claim.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,3 the Office’s regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.4 To be entitled to a merit review of an Office decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
2

Appellant held various positions and worked at various branches during her employment as a postmaster. On
February 16, 2007 she set forth numerous conditions and incidents that she alleged caused her emotional condition.
Appellant noted that, while she worked at the Buzzards’ Bay location from 1989 until 1992, a customer threatened
to kill her and her daughter. She alleged that she was subjected to physical intimidation and verbal abuse by the
postmaster. Appellant noted that, when her clerk resigned, she was not given the help she needed and that she had
to work 60 to 70 hours a week, six days a week. She noted that she transferred to the Sangamore office, where she
worked from 1992 to 1999. Appellant indicated that, while she was working there, a note was left on her door
during her lunch period threatening to kill her. In December 1999, she transferred to West Harwick to work as a
postmaster, where she alleged her requests for additional help were ignored and that she had to work from 6:00 am
through 5:30 pm. Appellant noted that in August 2001 she resigned as postmaster and returned to West Harwick as
a part-time flexible clerk. She stated she worked for several branches on a part-time basis but eventually left the
Providence area to relocate to Charleston, SC. Appellant alleged that the Charleston branch was isolated and
understaffed and robberies and shootings were prevalent. She noted that she then transferred to Florida where she
was subjected to a hostile environment and was threatened by an employee.
3

Under section 8128(a) of the Act, the Secretary of Labor may review an award for or against payment of
compensation at any time on his or her own motion or on application. 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.606(b)(2).

2

of the date of that decision.5 When a claimant fails to meet one of the above standards, the
Office will deny the application for reconsideration without reopening the case for review on the
merits.6
ANALYSIS
The Board finds that the Office abused its discretion in denying appellant’s request for
reconsideration. When the Office delays a reconsideration decision beyond 90 days and such
delay jeopardizes the claimant’s right to review of the merits of the case before the Board, it
should conduct a merit review.7 On October 22, 2008 appellant requested reconsideration of the
Office’s February 8, 2008 merit decision. However, the Office did not issue a decision on her
request until March 19, 2009, a delay of almost five months. Such delay preceded appellant
from seeking a merit review by the Board. The Board will remand the case to the Office for a
merit review in order to protect appellant’s rights.8
CONCLUSION
The Board finds that the Office abused its discretion in denying appellant’s request for
reconsideration of the merits of her claim.

5

Id. at § 10.607(a).

6

Id. at § 10.608(b).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.9 (June 1997).

8

Janice M. Hatcher, 55 ECAB 155 (2003); Joseph L. Cabral, 44 ECAB 152 (1992).

3

ORDER
IT IS HEREBY ORDERED THAT the March 19, 2009 decision of the Office of
Workers’ Compensation Programs be set aside. The case is remanded for further action
consistent with this decision.
Issued: June 1, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
U.S. POSTAL SERVICE, ATOCHA STATION,
Ponce, PR, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-822
Issued: November 14, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 5, 2012 appellant filed a timely appeal from merit decisions of the Office of
Workers’ Compensation Programs (OWCP) dated September 9, 2011 and January 24, 2012
denying her claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained
injury to her left knee causally related to her employment activities.
On appeal, appellant contends that OWCP erred in converting her claim from a
recurrence of injury to a new claim and erred in ignoring that the employing establishment did
not make reasonable accommodations with regard to her prior injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 30, 2010 appellant, then 44-year-old distribution and window clerk,
alleged a recurrence of a January 11, 2006 left knee injury (OWCP File No. xxxxxx448), on
November 9, 2010. She stopped work on November 15, 2010. Appellant contended that, when
she returned to work after her original injury, she was restricted from bending, standing for long
periods of time and heavy lifting. She also contended that she was not provided with proper job
accommodations and that bending and throwing mail with prolonged standing at the window
caused the recurrence of her injury. Appellant’s supervisor responded that appellant did not have
any accommodations or adjustments to her regular duties due to an injury-related limitation.
On January 12, 2011 appellant explained that on January 11, 2006 she sustained an injury
to her left knee when a heavy box fell and stuck her left knee. She was treated and released to
return to work on February 16, 2006 with restrictions from bending and lifting repetitively.
Appellant had surgery on May 19, 2006, but the pain in her left knee continued and she was not
provided with reasonable accommodation at work. She distributed letters and flats, which
involved constantly bending and twisting from side to side. Appellant also stood for long
periods of time while working the counter.
In a November 18, 2010 report, Dr. Derick E. Colon Lopez, a treating physiatrist, noted
that appellant has been under his care intermittently since April 21, 2006 due to bilateral knee
pain related to meniscal disease, rheumatoid arthritis and osteoarthritis. After reviewing
appellant’s medical records, physical examination and job description, he estimated that she
should not perform any job higher than light job demand level and that this needed confirmation
with a functional capacity evaluation. Dr. Lopez found that appellant could return to work with
restrictions, including avoiding repetitive lifting, pulling and pushing greater than 20 pounds and
should avoid prolonged static positions, walking or standing. In an attending physician’s report
dated December 21, 2010, he diagnosed lumbosacral radiculopathy and discogenic low back pain
which he believed was an overuse injury caused by repetitive “truncal” motion and heavy lifting.
Dr. Lopez stated that appellant’s condition was severe enough to cause total disability for return
to work or any other type of work. In a January 12, 2011 report, he opined that appellant has
reached maximum medical improvement and that she could perform job duties at higher than a
sedentary level.
By decision dated March 8, 2011, OWCP denied appellant’s claim. It treated her notice
of recurrence as a claim for a new injury as she claimed a condition due to her duties as a clerk.
OWCP found that appellant failed to establish that her claimed medical condition was related to
the established work events.
On March 28, 2011 appellant filed a request for reconsideration. No new evidence was
submitted.
By decision dated April 19, 2011, OWCP denied appellant’s request without conducting
a merit review of the case.

2

On June 11, 2011 appellant again requested reconsideration. In support of her
reconsideration request, she submitted an unsigned March 22, 2011 report from Dr. Lopez’s
office.
By decision dated September 9, 2011, OWCP denied modification of the prior decisions.
On November 3, 2011 appellant again requested reconsideration. She contended that her
claim was for a recurrence of disability due to her left knee condition not a new injury. In a
November 2, 2011 report, Dr. Lopez noted that appellant has been seen in his office since
April 6, 2006 for discogenic low back pain, lumbosacral radiculopathy, carpal tunnel syndrome,
osteoarthritis, knee chondromalacia, discogenic cervicalgia and myofascial pain syndrome. He
stated that he reviewed her medical records and concluded that these diagnoses were made and
directly related to specific work-related incidents that either caused, exacerbated or aggravated
her conditions. Dr. Lopez stated that the determinants used for direct causal relation include:
causal event took place; appellant had impairment as a result of stated event; event could cause
the condition; and event caused or contributed to the condition within medical probability. He
stated that, after reviewing appellant’s employment duties, job description and real life tasks, he
advised appellant against returning to work. Dr. Lopez stated that he based his decision on
appellant’s permanent, degenerative, progressive conditions and high risk of injury to herself or
others.
By decision dated January 24, 2012, OWCP denied modification of its earlier decision.
LEGAL PRECEDENT
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which for which compensation is claimed;
(2) a factual statement identifying employment factors alleged to have caused or contributed to
the presence or occurrence of the disease or condition; and (3) medical evidence establishing that
the employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The evidence required to establish causal relationship is rationalized medical opinion evidence,
based upon a complete factual and medical background, showing a causal relationship between
the claimed conditions and identified factors. The belief of a claimant that a condition was
caused or aggravated by the employment is not sufficient to establish causal relation.2
ANALYSIS
While appellant filed a claim for a recurrence of disability, the Board finds that OWCP
properly adjudicate her claim as a new occupational disease claim. She returned to work after
her prior injury and attributed that her increased left knee pain to her employment duties after her
return to work. Appellant described bending, throwing mail and daily prolonged standing, as
contributing factors. As she implicated work factors that occurred after her return to her federal
2

Lourdes Harris, 45 ECAB 545, 547 (1994); A.P., Docket No. 11-1802 (issued April 10, 2012).

3

employment, her current claim was properly adjudicated as an occupational disease.3 The issue
is not whether or not appellant’s work restrictions were followed but rather whether the new
employment duties caused or contributed to her left knee condition.
The Board finds that the medical evidence of record does not establish that appellant
sustained an aggravation of her left knee condition as a result of the accepted factors of her
federal employment. Dr. Lopez provided general statements attributing her numerous medical
conditions, including knee chondromalacia, to her federal employment. He stated that he
reviewed appellant’s specific employment duties but did not provide any specific discussion with
regard to her duties or medical rationale as to how the work duties aggravated her knee
condition. In order to be considered rationalized medical evidence, an opinion of the physician
must be based on a complete factual and medical background of the clamant, must be one of
reasonable medical certainty, and he must explain the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.4 The Board
further notes that a medical restriction based on a fear of future aggravation due to employment
exposure is not considered an injury under FECA and therefore no compensation can be paid for
such a possibility.5
The Board thus finds that appellant has not met her burden of proof to establish causal
relationship.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
suffered an injury to her knee causally related to her employment activities.

3

See A.P., id. Section 10.104 of OWCP’s regulations provide that a notice of recurrence should not be filed
when a new injury, new occupational disease, or a new event contributing to an already existing occupational
disease has occurred. In these instances, the employee should file a Form CA-1 or CA-2. 20 C.F.R. § 10.404.
4

M.S., Docket No. 12-141 (issued July 12, 2012).

5

Carlos A. Marrero, Docket No. 96-2186 (issued October 19, 1998).

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 24, 2012 and September 9, 2011 are affirmed.
Issued: November 14, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
U.S. POSTAL SERVICE, FORT WORTH
PROCESSING & DISTRIBUTION CENTER,
Fort Worth, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)
)

Docket No. 21-1008
Issued: October 26, 2021

Case Submitted on the Record

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

On June 23, 2021 appellant sought an appeal from a purported June 21, 2021 decision of
the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as No. 21-1008.
The Board, having duly considered the matter, notes that its jurisdiction is limited to the
review of final adverse OWCP decisions issued under the Federal Employees ’ Compensation
Act.1 The case record as transmitted to the Board does not contain a final adverse decision of
OWCP issued within 180 days from the date of docketing of the current appeal. 2 The most
recent final adverse decision was issued by OWCP on March 12, 2020, which this Board
affirmed in part and set aside in part on June 21, 2021 in Docket No. 20-1058. 3 As there is no
1

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

20 C.F.R. § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 day s f rom t h e
date of issuance of a decision of the OWCP.”
2

3

By the June 21, 2021 decision, the Board affirmed OWCP’s finding of fact of o verpayment . H o wever, t h e
Board also set aside OWCP’s determination regarding the amount of the overpayment, finding that the case was not
in posture for decision as to the period and amount of the overpayment. The Board remanded t h e ca se f o r a n ew
preliminary determination of overpayment and a de novo overpayment decision. See Docket No. 20-1 058 (issu ed
June 21, 2021).

final adverse decision issued by OWCP over which the Board may properly exercise jurisdiction,
the Board concludes that the appeal docketed as No. 21-1008 must be dismissed. Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-1008 is dismissed.
Issued: October 26, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.D., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Miami, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-0524
Issued: August 3, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 5, 2015 appellant, through counsel, filed a timely appeal from a
November 26, 2014 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Because more than 180 days elapsed since the most recent merit decision dated
February 22, 2013 and the filing of this appeal on January 5, 2015, pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks
jurisdiction to review the merits of appellant’s case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and did not establish clear evidence of error.
On appeal, counsel contends that OWCP improperly refused to adjudicate appellant’s
schedule award claim.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 15, 2014 appellant, then a 39-year-old special agent, filed a traumatic injury
claim (Form CA-1) alleging that he sustained injuries on February 14, 2011 as a result of bench
pressing in the performance of duty. OWCP accepted the claim for pectoralis tear and right
shoulder infraspinatus tear. It authorized right shoulder pectoral tendon repair surgery, which
appellant underwent on March 3, 2011.
On October 30, 2012 appellant, through counsel, filed a claim for a schedule award.
On January 14, 2013 an OWCP medical adviser reviewed the record and found that
appellant had reached maximum medical improvement on December 3, 2012 but that he had no
ratable impairment of the right upper extremity.
In a January 15, 2013 letter, OWCP notified appellant of the deficiencies of his schedule
award claim and afforded him 30 days to submit additional evidence.
Appellant submitted a report dated February 1, 2013 from Dr. George Caldwell, Jr., a
Board-certified orthopedic surgeon, who reiterated that appellant had received a zero impairment
rating and indicated that he used the Florida Impairment Rating, not the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides), to determine
impairment ratings.
By decision dated February 22, 2013, OWCP denied appellant’s schedule award claim as
the medical evidence failed to establish a ratable impairment of a scheduled member.
On November 11, 2014 appellant, through counsel, requested reconsideration. Counsel
submitted reports dated September 16 and October 27, 2014 from Dr. Robin Simon, a Boardcertified orthopedic surgeon, who diagnosed right shoulder infraspinatus tendon tear and right
shoulder impingement syndrome. Dr. Simon opined that appellant had reached maximum
medical improvement and had six percent permanent impairment of the right upper extremity
under Table 15-34, page 475, of the sixth edition of the A.M.A., Guides.
By decision dated November 26, 2014, OWCP denied appellant’s request for
reconsideration on the basis that it was untimely filed and failed to present clear evidence of
error.
LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
2

Id. at § 8107.

3

20 C.F.R. § 10.404.

2

and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants.4 The A.M.A., Guides have been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.5
In schedule award cases, a distinction is made between an application for an additional
schedule award and a request for reconsideration of an existing schedule award. When a
claimant is asserting that an original award was erroneous based on his or her medical condition
at that time, this is a request for reconsideration. However, even if the term reconsideration is
used, when a claimant is not attempting to show error in the prior schedule award decision and
submits medical evidence regarding a permanent impairment at a date subsequent to the prior
schedule award decision, it should be considered a claim for an additional schedule award. A
claim for an additional schedule award may be based on new exposure to employment factors or
on the progression of an employment-related condition, without new exposure, resulting in
greater permanent impairment. OWCP should issue a merit decision on the schedule award
claim, rather than adjudicate an application for reconsideration.6
ANALYSIS
The Board finds that this case is not in posture for decision.
On November 11, 2014 appellant requested reconsideration of OWCP’s February 22,
2013 schedule award decision. He submitted new evidence relating to his medical diagnosis and
schedule award claim. In reports dated September 16 and October 27, 2014, Dr. Simon
diagnosed right shoulder infraspinatus tendon tear and right shoulder impingement syndrome and
opined that appellant had six percent permanent impairment of the right upper extremity under
Table 15-34, page 475, of the sixth edition of the A.M.A., Guides.
In its November 26, 2014 decision, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to present clear evidence of error. Its procedures
state that, if a claimant is seeking an increased schedule award due to increased impairment
and/or additional exposure, but not contesting the decision or prior award, this should not be
treated as a reconsideration request and OWCP should develop the issue of entitlement to an
additional award.7

4

See D.K., Docket No. 10-174 (issued July 2, 2010); Michael S. Mina, 57 ECAB 379, 385 (2006).

5

Supra note 3; see F.D., Docket No. 09-1346 (issued July 19, 2010).

6

See B.K., 59 ECAB 228, 229-30 (2007); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards
and Permanent Disability Claims, Chapter 2.808.9.b (February 2013). See also Candace A. Karkoff, 56 ECAB 622,
625 (2005); Linda T. Brown, 51 ECAB 115, 115-16 (1999); Paul R. Reedy, 45 ECAB 488, 490 (1994); Leonard E.
Redway, 28 ECAB 242, 246-47 (1977) (where it was evident that the claimant was seeking a schedule award based
on new and current medical evidence, OWCP should have issued a merit decision on the schedule award claim
rather than adjudicate an application for reconsideration).
7

See A.C., Docket No. 13-1810 (issued January 6, 2014); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.3(b) (October 2011).

3

In the present case, appellant submitted two new medical reports dated September 16 and
October 27, 2014 from Dr. Simon, after OWCP’s February 22, 2013 schedule award decision.
These reports addressed the pertinent issue of this case, i.e., whether he was entitled to schedule
award compensation for right upper extremity impairment, as it contained an impairment rating
that referenced the A.M.A., Guides. It is evident from the record that he was not seeking
reconsideration of the February 22, 2013 OWCP decision, but was seeking a schedule award
based on new medical evidence. The Board has held that, even if the term reconsideration is
used, when a claimant is not attempting to show error in the prior schedule award decision and
submits medical evidence regarding a permanent impairment at a date subsequent to the prior
schedule award decision, it should be considered a claim for an increased schedule award and
OWCP should issue a merit decision on the schedule award claim, rather than adjudicate an
application for reconsideration.8
The Board finds that OWCP improperly adjudicated appellant’s request for an additional
schedule award as a request for reconsideration under the clear evidence of error standard. The
case will be remanded for further development on the issue of whether appellant has a permanent
impairment of his right upper extremity entitling him to a schedule award. After this
development is carried out, OWCP shall issue a de novo decision on appellant’s claim.
CONCLUSION
The Board finds that this case is not in posture for decision.

8

See supra note 6. See also R.L., Docket No. 09-1948 (issued June 29, 2010).

4

ORDER
IT IS HEREBY ORDERED THAT the November 26, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: August 3, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5