United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.J., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Vandalia, OH, Employer
__________________________________________

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

Docket No. 08-1845
Issued: March 10, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 13, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ October 23, 2007 and April 22, 2008 merit decisions concerning the
termination of her compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s
compensation effective October 27, 2007 on the grounds that she had no residuals of her
September 6, 2003 employment injury after that date.
FACTUAL HISTORY
This is the second appeal in this case. The Board issued a decision on May 2, 2007
reversing the Office’s September 15, 2006 decision on the grounds that the Office improperly
reduced appellant’s compensation effective September 14, 2005 based on her capacity to earn

wages as a photofinishing laboratory worker.1 The Office had accepted that on September 6, 2003
appellant, then a 33-year-old transportation security screener, sustained a lumbosacral sprain/strain
due to lifting bags at x-ray machines. The Board found that the Office had not shown that
appellant could perform the duties of the constructed position of photofinishing laboratory worker
given the work restrictions contained in the February 25, 2005 report of Dr. Roger V. Meyer, a
Board-certified orthopedic surgeon, who served as an impartial medical specialist. The facts and
circumstances of the case up to that point are set forth in the Board’s prior decision and are
incorporated herein by reference.
In July 10, August 7 and September 13, 2006 reports, Dr. John P. Moore, III, an attending
Board-certified family practitioner, stated that appellant primarily reported fatigue, restricted
flexibility and stabbing and shooting pain in her right medial calf. Appellant also complained of
“back injuries, back pain and joint pain.” In a November 14, 2006 referral slip, Dr. Mark Rorrer,
an attending osteopath, noted that appellant had a history of chronic low back pain.
In early May 2007 the Office referred appellant and the case record to Dr. Pietro Seni, a
Board-certified orthopedic surgeon, for evaluation of whether she continued to have residuals of
her September 6, 2003 employment injury.
On May 30, 2007 Dr. Seni detailed appellant’s factual and medical history including the
circumstances of her September 6, 2003 employment injury. He also provided an extensive
discussion of the medical reports detailing the treatment of her back problems. Dr. Seni noted that
multiple magnetic resonance imaging (MRI) tests were practically within normal limits. He
indicated that the physical examination revealed that appellant did not have any abnormal back
curvature and that the iliac crests and shoulders were even. The paravertebral muscles of the L5
spine are tight, there were several trigger points (including both sacroiliac joints) and range of
motion of the back was painful. There were no sensory changes upon pinwheel examination and
no muscle weakness upon manual muscle testing, including the extensor hallucis longus. Straight
leg raising and Lasegue’s sign testing were negative and range of motion of the hip joints was
normal but painful.
Dr. Seni noted that Dr. Aivars Vitols, an attending osteopath, felt that appellant’s
complaints were related mainly to sacroiliac joint pathology. He indicated that appellant’s most
likely diagnosis was axial spondylarthritis which was not related to the September 6, 2003
employment injury.2 Dr. Seni stated that there were no objective findings to show that the workrelated lumbosacral sprain/strain was still active and causing symptoms. Appellant might have had
a temporary aggravation of an underlying condition but she no longer had any residuals of her
September 6, 2003 injury. Dr. Seni recommended work restrictions, including lifting no more than
30 pounds, but stated that they were required by the nonwork-related axial spondylarthritis rather
than the September 6, 2003 injury.3
1

Docket No. 07-103 (issued May 2, 2007).

2

Dr. Seni noted that appellant’s primary complaints, including stiffness and joint pain, supported this diagnosis.

3

Dr. Seni completed a work restriction form.

2

On July 3, 2007 the Office requested that Dr. Vitols provide an opinion regarding whether
appellant continued to have residuals of her September 6, 2003 employment injury. It does not
appear that Dr. Vitols responded to this request.4
In a July 12, 2007 note, Dr. Lance Tigyer, an attending osteopath, stated that appellant
complained primarily of low back pain with some thigh pain. He indicated that he reviewed the
MRI scan results which did not show any spinal stenosis or disc herniations.5
In a September 10, 2007 letter, the Office advised appellant that it proposed to terminate
her compensation on the grounds that she no longer had residuals of her September 6, 2003
employment injury. It indicated that the weight of the medical evidence regarding whether she
continued to have employment-related residuals rested with the opinion of Dr. Seni. The Office
advised appellant that she had 30 days from the date of the letter to submit evidence and
argument contesting the proposed termination.6
In an October 23, 2007 decision, the Office terminated appellant’s compensation
effective October 27, 2007 on the grounds that she had no residuals of her September 6, 2003
employment injury after that date. It indicated that the termination was justified by the opinion
of Dr. Seni.
Appellant requested a hearing before an Office hearing representative. At the February 20,
2008 hearing, she asserted that she continued to have disabling residuals of her September 6, 2003
employment injury. In an April 22, 2008 decision, the Office hearing representative affirmed the
Office’s October 23, 2007 decision.
LEGAL PRECEDENT
Under the Federal Employees’ Compensation Act,7 once the Office has accepted a claim
it has the burden of justifying termination or modification of compensation benefits.8 The Office
may not terminate compensation without establishing that the disability ceased or that it was no
longer related to the employment.9 The Office’s burden of proof includes the necessity of
furnishing rationalized medical opinion evidence based on a proper factual and medical
background.10

4

There is no indication in the record that Dr. Vitols treated appellant around the time of Dr. Seni’s evaluation.

5

The record contains May 22, 2007 MRI scan test findings that are normal.

6

Appellant did not submit any new medical evidence within the allotted time.

7

5 U.S.C. §§ 8101-8193.

8

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

9

Id.

10

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

3

ANALYSIS
The Office had accepted that on September 6, 2003 appellant sustained a lumbosacral
sprain/strain due to lifting bags at x-ray machines. It terminated appellant’s compensation
effective October 27, 2007 on the grounds that she had no residuals of her September 6, 2003
employment injury after that date. The Office indicated that the weight of the medical evidence
regarding whether she continued to have employment-related residuals rested with the opinion of
Dr. Seni, a Board-certified orthopedic surgeon, who served as an Office referral physician.
On May 30, 2007 Dr. Seni detailed appellant’s factual and medical history including the
circumstances of her September 6, 2003 employment injury. He noted that multiple MRI scan
tests were practically within normal limits and indicated that the physical examination revealed
that appellant did not have any abnormal back curvature and that the iliac crests and shoulders
were even. The paravertebral muscles of the L5 spine are tight, there were several trigger points
(including both sacroiliac joints) and range of motion of the back was painful. There were no
sensory changes upon pinwheel examination and no muscle weakness upon manual muscle testing,
including the extensor hallucis longus. Straight leg raising and Lasegue’s sign testing were
negative and range of motion of the hip joints was normal but painful. Dr. Seni concluded that
appellant did not have any residuals of the September 6, 2003 employment injury, a lumbosacral
sprain/strain.
The Board has carefully reviewed the opinion of Dr. Seni and notes that it has reliability,
probative value and convincing quality with respect to its conclusions regarding the relevant
issue of the present case. Dr. Seni’s opinion was based on a proper factual and medical history
and he accurately summarized the relevant medical evidence.11 He provided medical rationale
for his opinion by explaining that there were no objective findings, on examination or diagnostic
testing, to show that the work-related lumbosacral sprain/strain was still active and causing
symptoms. Appellant might have had a temporary aggravation of an underlying condition but she
no longer had any residuals of her September 6, 2003 injury. Dr. Seni further explained that
appellant’s symptoms and findings showed that her continuing problems were caused by a
nonwork-related condition which most likely was axial spondylarthritis. He recommended work
restrictions, including lifting no more than 30 pounds, but stated that they were required by the
nonwork-related axial spondylarthritis rather than the September 6, 2003 injury.12

11

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

12

In a July 12, 2007 note, Dr. Tigyer, an attending osteopath, stated that appellant complained primarily of low back
pain with some thigh pain. He indicated that he reviewed MRI scan results which did not show any spinal stenosis or
disc herniations. This report is of limited probative value on the relevant issue of the present case because Dr. Tigyer
did not provide any opinion regarding whether appellant continued to have residuals of her September 6, 2003
employment injury. See Charles H. Tomaszewski, 39 ECAB 461, 467-68 (1988) (finding that medical evidence which
does not offer any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of
causal relationship). The record does not contain any other medical evidence from around the time of Dr. Seni’s
evaluation.

4

CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation effective October 27, 2007 on the grounds that she had no residuals of her
September 6, 2003 employment injury after that date.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
April 22, 2008 and October 23, 2007 decisions are affirmed.
Issued: March 10, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


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

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Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1300
Issued: December 7, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 30, 2012 appellant, through his attorney, filed a timely appeal from a March 19,
2012 Office of Workers’ Compensation Programs’ (OWCP) merit decision denying his
emotional condition 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 this case.
ISSUE
The issue is whether appellant established that he sustained an emotional condition on
June 30, 2010 while in the performance of duty.
On appeal, counsel contends that the evidence of record establishes that appellant’s
emotional condition was caused by compensable factors of his federal employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 14, 2010 appellant, a 33-year-old letter carrier, filed a traumatic injury claim
Form CA-1 alleging that on June 30, 2010 he sustained chest pains, severe headaches, stiffness,
sore body and stomach trouble as a result of a dispute with management. He stopped work that
day.
The employing establishment submitted a time and attendance sheet recording that
appellant arrived at work on June 29, 2010 at 8:18 a.m. The entry was marked as nonscheduled
begin tour.
In a June 30, 2010 incident report, Silvia Glover, appellant’s manager, stated that at 8:25
a.m. Pam Elkins, a supervisor, informed appellant that he came in late the previous day and made
up the time at the end of his tour, which was not allowed. Appellant became very upset and
started yelling, stating that he completed a change of schedule due to his father’s illness.
Ms. Glover reminded him that he could not come in anytime he felt like. If appellant had
requested a change of tour to arrive at 8:30 a.m. that had to be done daily until the change of
schedule expired. He could not come to work at 8:18 a.m. and think the change of schedule
covered his tardiness. Appellant’s scheduled begin time was 8:00 a.m. He became very agitated
and started breathing heavily. Appellant asked to be alone, noted that he had anxiety attacks
when he became upset and needed to calm down.
In a July 14, 2010 witness statement, Ms. Elkins indicated that on June 30, 2010 she had
approached appellant regarding his begin tour. Appellant had a change of schedule on file for
8:30 a.m. to begin his tour of duty. He arrived at 8:18 a.m. on June 29, 2010. Ms. Elkins
explained to begin his tour either at 8:00 a.m. or at 8:30 a.m. Appellant became agitated and
Ms. Glover told him to go into her office. Ms. Elkins stated that Ms. Glover did not raise her
voice to appellant and he asked to be left alone to calm down. When she went to check on
appellant, he was having trouble breathing so she called 9-1-1. Appellant stated that he was
having chest pains when the ambulance took him to the hospital.
In a July 28, 2010 letter, the employing establishment controverted appellant’s claim.
By letter dated July 30, 2010, OWCP requested additional evidence from appellant in
support of his claim and allotted 30 days for submission.
Appellant submitted an August 30, 2010 report by Barry Silverman, a social worker, who
indicated that appellant had experienced symptoms of severe anxiety, depression and agitation as
a result of a series of encounters with Ms. Glover at work. Ms. Glover reportedly verbally
abused and bullied him. Mr. Silverman diagnosed post-traumatic stress disorder (PTSD) and
opined that appellant was unable to return to work.
In a July 8, 2010 report, Dr. Alan B. Perel, a Board-certified neurologist, stated that on
June 30, 2010 appellant had a verbal argument with his supervisor and then noted chest pain.
Appellant had clinical evidence of lightheadedness, headaches and neck pain, which might be
indicative of a cervical radiculopathy. On July 14, 2010 Dr. Perel found evidence of a mild left
facial weakness with a left hemisensory loss and patchy decreased sensation in the right arm.

2

By decision dated August 30, 2010, OWCP denied appellant’s claim finding that the
evidence was not sufficient to establish a compensable factor of employment.
On September 24, 2010 appellant, through his attorney, requested an oral hearing before
an OWCP hearing representative. In a February 3, 2011 report, Mr. Silverman reiterated his
diagnosis and opinion.
At a February 14, 2011 oral hearing appellant testified that his father had a heart attack.
Instead of taking family medical leave or staying at home, he went to work. Appellant
previously had a different manager with whom he had an “agreement” that appellant could be
late to work. He testified that there was a written change of schedule that sometimes he would
come in late or come in at 8:30 a.m. On those days, appellant would call his supervisor to notify
that he was going to be late. It would be put in as a change of schedule and he would stay later
to make up the time. Appellant reported that there was no discipline for being late until
June 30, 2010. He could have put in for family medical leave for the 15 minutes he was late, but
no one said anything until the next day.
In a March 8, 2011 statement, Ms. Elkins noted that appellant was informed that a change
of schedule was not to be used to cover tardiness.
In an undated statement, Ms. Glover noted that she had not received a telephone call from
appellant and Ms. Elkins did not recall receiving a telephone call from him that day. She was not
otherwise aware that he had arrived late prior to his arrival at the station at 8:18 a.m. Ms. Glover
initially placed appellant on leave under the Family and Medical Leave Act (FMLA) but he did
not complete the forms sent to him and it was denied. She noted that the previous manager
condoned his tardiness but after he retired she became the new manager and stopped the practice.
Ms. Glover indicated that appellant and all other employees were informed of the time
requirements. Appellant attempted to make-up his time at the end of his tour on a previous day
but she informed him of the requirement to be regular in his attendance.
In a March 18, 2011 report, Dr. Joel Breving, a psychiatrist, noted that he had treated
appellant since October 2010. He diagnosed panic disorder without agoraphobia and stated that
his diagnosis was believed to be work related.
By decision dated April 27, 2011, OWCP’s hearing representative affirmed the
August 30, 2010 decision finding that the evidence submitted did not establish any compensable
factors of employment.
On December 30, 2011 appellant, through counsel, requested reconsideration and
submitted a November 21, 2011 report by Dr. Breving, who indicated that he first saw appellant
on October 27, 2010 when he was experiencing severe symptomatology of anxiety and panic
attacks that occurred after an incident at work with a supervisor. He diagnosed panic disorder
with agoraphobia, ruling out PTSD. Dr. Breving opined that appellant was unable to work and
was fully disabled.
In statements dated February 8, 2012, Ms. Elkins and Ms. Glover indicated that appellant
came to work late several times due to visiting his father and was given 30 days to make other
arrangements. After 30 days had passed, appellant was required to report to work as scheduled.
3

By decision dated March 19, 2012, OWCP denied modification of its April 27, 2011
decision.
LEGAL PRECEDENT
In providing for a compensation program for federal employees, Congress did not
contemplate an insurance program against any and every injury, illness or mishap that might
befall an employee contemporaneous or coincidental with his or her employment. Liability does
not attach merely upon the existence of an employee-employer relation. Congress provided for
the payment of compensation for disability or death of an employee resulting from personal
injury sustained while in the performance of duty.2 The phrase while in the performance of duty
has been interpreted by the Board to be the equivalent of the commonly found prerequisite in
workers’ compensation law of arising out of and in the course of employment.
In Lillian Cutler,3 the Board noted that workers’ compensation law is not applicable to
each and every injury or illness that is somehow related to an employee’s employment. There
are situations when an injury or illness has some connection with the employment but
nonetheless does not come within the coverage of workers’ compensation as they are found not
to have arisen out of the employment. When an employee experiences emotional stress in
carrying out her employment duties or has fear and anxiety regarding her ability to carry out her
duties, and the medical evidence establishes that the disability resulted from her emotional
reaction to such situation, the disability is generally regarded as due to an injury arising out of
and in the course of employment. This is true when the employee’s disability resulted from her
emotional reaction to her day-to-day duties. The same result is reached when the emotional
disability resulted from the employee’s emotional reaction to a special assignment or
requirement imposed by the employing establishment or by the nature of the work.4
In contrast, a disabling condition resulting from an employee’s feelings of job insecurity
are not sufficient to constitute a personal injury sustained in the performance of duty within the
meaning of FECA. Thus, disability is not covered when it results from an employee’s fear of a
reduction-in-force, unhappiness with doing inside work, desire for a different job, brooding over
the failure to be given work she desires, or the employee’s frustration in not being permitted to
work in a particular environment or to hold a particular position.5 Board case precedent
demonstrates that the only requirements of employment which will bring a claim within the
scope of coverage under FECA are those that relate to the duties the employee is hired to
perform.6

2

See id. at § 8102(a).

3

28 ECAB 125 (1976).

4

Id. at 130.

5

See Lillian Cutler, supra note 3.

6

See Anthony A. Zarcone, 44 ECAB 751 (1993).

4

In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable work factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
compensable factors of employment and may not be considered.7 If a claimant does implicate a
factor of employment, OWCP should then consider whether the evidence of record substantiates
that factor. As a rule, allegations alone by a claimant are insufficient to establish a factual basis
for an emotional condition claim, the claim must be supported by probative evidence.8 Where
the matter asserted is a compensable factor of employment and the evidence of record
established the truth of the matter asserted, OWCP must base its decision on an analysis of the
medical evidence.9
ANALYSIS
Appellant has not attributed his emotional condition is related to his regular duties as a
letter carrier under Cutler. His allegations do not relate to such potential compensable factors as
overwork or any claim of his inability to perform the duties required in his position.10 Rather,
appellant attributed his emotional reaction to actions taken by his supervisors on June 30, 2010,
including a disciplinary discussion regarding his tardiness to work. The Board must review
whether the alleged incidents and conditions of employment are compensable factors of
employment under the terms of FECA.
For harassment to give rise to compensability under FECA, there must be evidence that
harassment did, in fact, occur. Mere perceptions of harassment are not compensable under
FECA.11 In the present case, OWCP found that appellant was not subjected to any harassment
and did not submit any evidence substantiating his allegations.
There is no evidence to substantiate any derogatory remark by Ms. Elkins or Ms. Glover
to appellant upon his arrival at work on June 30, 2010 or during the discussions pertaining to his
tardiness on June 29, 2010. There is no evidence of record from any witness to substantiate
7

See Dennis J. Balogh, 52 ECAB 232 (2001).

8

See Charles E. McAndrews, 55 ECAB 711 (2004).

9

See Jeral R. Gray, 57 ECAB 611 (2006).

10

See Reco Roncaglione, 52 ECAB 454 (2001) (disagreement with the associate warden held not compensable,
whether viewed as a disagreement with supervisory instructions or as perceived poor management); Robert Knoke,
51 ECAB 319 (2000) (where the employee attributed his emotional injury to the manner in which his supervisor
spoke to him about undelivered mail, the Board found that a reaction to the instruction itself was not compensable,
as work assignments given by supervisors in the exercise of supervisory discretion are actions taken in an
administrative capacity and, as such, are outside the coverage of FECA); Frank A. Catapano, 46 ECAB 297 (1994)
(supervisory instructions, with which the employee disagreed, held not compensable in the absence of evidence of
managerial error or abuse); Rudy Madril, 45 ECAB 602 (1994) (where the employee questioned his supervisor’s
instructions to move from belt number five to belt number six and unload mail and became upset because he felt he
was being pushed and picked on, the Board found that the incident was not a compensable factor of employment).
11

See Michael Thomas Plante, 44 ECAB 510 (1993); William P. George, 43 ECAB 1159 (1992).

5

appellant’s allegation that he was harassed by Ms. Glover or Ms. Elkins. Rather, the evidence of
record establishes that, following his late arrival at work, he was allowed to stay in Ms. Glover’s
office alone to calm down. There is no evidence from appellant in support of his allegations that
he was harassed by his supervisors on June 30, 2010.
Appellant’s allegations pertaining to the morning of June 30, 2010 relate to
administrative and personnel matters of the employing establishment involving a disciplinary
discussion held concerning his late arrivals to work. Generally, an employee’s emotional
reaction to administrative or personnel matters is not covered under FECA. However, when the
evidence of record demonstrates that the employing establishment erred or acted unreasonably in
a personnel matter, coverage may be afforded.12 The Board finds that the evidence of record
does not establish that Ms. Glover or Ms. Elkins acted unreasonably or erred in the
administrative and personnel matters they raised with appellant in counseling him with regards to
his tardiness.13 Therefore, appellant’s allegations do not constitute compensable factors of
employment.
The evidence of record does not establish appellant’s allegations of harassment or that the
June 30, 2010 incident to which he attributes his emotional condition arose from the performance
of his regular or specially assigned work duties. Rather appellant’s emotional reaction to the
personnel and administrative matters can be described as self-generated and not arising in the
performance of duty but due to his personal frustration in not being permitted to work in a
particular work environment. Thus, he has not met his burden of proof to establish a claim.14
On appeal, counsel contends that the evidence of record establish that appellant’s
emotional conditions were caused by compensable factors of his federal employment and that
OWCP failed to develop the evidence to see that justice was done. For the reasons stated above,
the Board finds counsel arguments are not substantiated.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that he sustained an emotional
condition on June 30, 2010 while in the performance of duty.

12

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Norman A. Harris, 42
ECAB 923 (1991).
13

See Kathi A. Scarnato, 43 ECAB 220 (1991) (the Board noted that the employing establishment retains the
right to preserve an environment in which the performance of work is an essential goal). See also Anthony A.
Zarcone, supra note 6; Drew A. Weissmuller, 43 ECAB 745 (1992).
14

As appellant has failed to establish a compensable employment factor, the Board need not address the medical
evidence of record. Marlon Vera, 54 ECAB 834 (2003).

6

ORDER
IT IS HEREBY ORDERED THAT the March 19, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 7, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.L., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, East Boston, MA,
Employer
__________________________________________

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

Docket No. 18-1492
Issued: March 19, 2019

Case Submitted on the Record

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

JURISDICTION
On July 31, 2018 appellant, through counsel, filed a timely appeal from an April 16, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a permanent
impairment of his left lower extremity causally related to his accepted employment injury,
warranting a schedule award.
FACTUAL HISTORY
This case has previously been before the Board. The facts and circumstances of this case
as presented in the prior appeal are incorporated herein by reference.3 The relevant facts are as
follows.
On October 10, 2010 appellant, then a 57-year-old transportation security officer
(screener), filed a traumatic injury claim (Form CA-1) alleging that he injured his lower back when
lifting a bag while in the performance of duty. He stopped work on October 19, 2010 and returned
to limited-duty work on October 24, 2010. OWCP assigned OWCP File No. xxxxxx049 and
accepted the claim for a lumbar sprain.4
On December 20, 2016 Dr. Polly Fraga, a Board-certified internist, indicated that appellant
had reached maximum medical improvement (MMI) as of that day.
In a report dated January 12, 2017, Dr. Joseph B. Fitzgerald, a Board-certified orthopedic
surgeon, based upon a review of medical evidence and physical examination, diagnosed L4 lumbar
radiculopathy, L4 herniated disc, and lumbar spondylosis. Using the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),5 he
determined that appellant had 11 percent left lower extremity permanent impairment for motor and
sensory deficits. In reaching this determination, Dr. Fitzgerald assigned a class 1 for L4 with a
default impairment of three percent for mild sensory deficits and five percent for mild motor
deficits. Next, he applied grade modifiers of two for functional history and one for physical
examination, resulting in a net adjustment to grade D or four percent left lower extremity
permanent impairment for L4 mild sensory loss and seven percent left lower extremity permanent
impairment for L4 mild motor deficit or 11 percent left lower extremity permanent impairment.
On January 22, 2017 appellant filed a claim for a schedule award (Form CA-7).
By development letter dated April 13, 2017, OWCP informed appellant that additional
evidence was necessary to establish his schedule award claim. Specifically it advised him that
Dr. Fitzgerald’s impairment rating was insufficient to support his claim as the impairment rating
was based on medical conditions not accepted by OWCP. OWCP afforded appellant 30 days to
3

Docket No. 14-1450 (issued September 11, 2015).

4
Appellant subsequently filed another claim for traumatic injury on August 14, 2012, alleging back, neck and
hernia conditions. OWCP assigned that claim File No. xxxxxx985, which it denied. It remains in closed status.
OWCP combined OWCP File Nos. xxxxxx049 and xxxxxx985 on December 23, 2013, with OWCP File No.
xxxxx049 listed as the master file.
5

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

2

submit evidence of a permanent impairment causally related to the accepted condition of lumbar
sprain.
In response to OWCP’s request, appellant submitted an October 19, 2010 progress note
signed by Gail Spellman, a nurse practitioner, and magnetic resonance imaging (MRI) scans dated
March 5, 2011 and November 4, 2012. He also submitted an April 28, 2017 letter from Dr. Fraga,
in which she noted that appellant had experienced back pain and symptoms since
October 19, 2010.
By decision dated September 19, 2017, OWCP denied appellant’s schedule award claim,
finding that the medical evidence of record was insufficient to establish permanent impairment of
a scheduled member or function of the body due to the accepted employment injury.
On September 26, 2017 appellant, through counsel, requested a telephonic hearing before
an OWCP hearing representative. The hearing was held on March 7, 2018. Counsel noted during
the hearing that appellant’s lumbar conditions were either preexisting or aggravated by the
employment injury.
By decision dated April 16, 2018, OWCP’s hearing representative affirmed the denial of
appellant’s schedule award claim.
LEGAL PRECEDENT
The schedule award provisions of FECA6 and its implementing regulations7 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides has been adopted by the implementing regulations as the appropriate standard for
evaluating schedule losses.8 The effective date of the sixth edition of the A.M.A., Guides is
May 1, 2009.9 It is well established that in determining the amount of a schedule award for a
member of the body that sustained an employment-related permanent impairment, preexisting

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id.

9
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.6 (March 2017); Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).

3

impairments of the body are to be included.10 A schedule award is not payable under section 8107
of FECA for an impairment of the whole person.11
A schedule award is not payable for a member, function, or organ of the body not specified
in FECA or in the implementing regulations.12 As neither FECA nor the regulations provide for
the payment of a schedule award for the permanent loss of use of the back or spine, no claimant is
entitled to such an award.13 However, as FECA makes provision for the extremities, a claimant
may be entitled to a schedule award for permanent impairment to an extremity even though the
cause of the impairment originates in the spine, if the medical evidence establishes impairment as
a result of the employment injury.14
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. For peripheral nerve impairments to the upper or
lower extremities resulting from spinal injuries, OWCP’s procedures indicate that The Guides
Newsletter is to be applied.15 The Board has long recognized the discretion of OWCP to adopt
and utilize various editions of the A.M.A., Guides for assessing permanent impairment.16 In
particular, the Board has recognized the adoption of this methodology for rating extremity
impairment, including the use of The Guides Newsletter, as proper in order to provide a uniform
standard applicable to each claimant for a schedule award for extremity impairment originating in
the spine.17
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of his left lower extremity causally related to his accepted employment injury,
warranting a schedule award.
In his January 12, 2017 report, Dr. Fitzgerald rated appellant’s left lower extremity based
the diagnoses of L4 lumbar radiculopathy, L4 herniated disc, and lumbar spondylosis. A schedule
10
J.H., Docket No. 17-1916 (issued January 19, 2019); see Raymond E. Gwynn, 25 ECAB 247 (1983); Federal
(FECA) Procedure Manual, supra note 9 at Schedule Awards, Chapter 3.700.3(a)(3) (January 2010). This portion of
OWCP’s procedures provides that the impairment rating of a given scheduled member should include any preexisting
permanent impairment of the same member or function.
11
See A.L., Docket No. 08-1730 (issued March 16, 2009); Marilyn S. Freeland, 57 ECAB 607 (2006); Gordon G.
McNeill, 42 ECAB 140 (1990).
12

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

13

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

14

See J.H., supra note 10; George E. Williams, 44 ECAB 530 (1993).

15

See G.N., Docket No. 10-0850 (issued November 12, 2010); see also supra note 9 at Chapter 3.700, Exhibit 1,
note 5 (January 2010). The Guides Newsletter is included as Exhibit 4.
16

D.S., Docket No. 14-0012 (issued March 18, 2014).

17

See A.R., Docket No. 17-1504 (issued May 25, 2018); E.D., Docket No. 13-2024 (issued April 24, 2014).

4

award can be paid only for a condition related to an employment injury. The claimant has the
burden of proving that the condition for which a schedule award is sought is causally related to his
or her employment.18 Dr. Fitzgerald did not offer rationalized medical opinion which established
that these diagnoses were causally related to the accepted employment injury, appellant is not
entitled to a schedule award for permanent impairment of the left lower extremity arising from
these diagnoses.19 The Board also finds that Dr. Fitzgerald did not specifically identify any lower
extremity impairment due to appellant’s accepted lumbar sprain. Dr. Fitzgerald did not indicate
that the work-related injury had affected any residual usefulness, in whole or in part, of the left
lower extremity.20
While counsel has also contended that OWCP should have considered Dr. Fitzgerald’s
diagnosed conditions to be preexisting and therefore included in a permanent impairment
evaluation, the Board has explained that a preexisting, underlying condition should be considered
when determining entitlement to a schedule award, but only to the extent that the work-related
injury has affected any residual usefulness in whole or in part of the scheduled member.21 Since
appellant has not established that the accepted condition of lumbar sprain caused a permanent
impairment of a scheduled member, appellant is not entitled to a schedule award based solely on
any preexisting conditions.
The remaining medical evidence is insufficient to support appellant’s claim. Dr. Fraga’s
December 20, 2016 note and April 28, 2017 letter do not address whether appellant had any
permanent impairment of his left lower extremity. Evidence which does not address the issue of
permanent impairment is irrelevant in a schedule award claim.22 Ms. Spellman’s October 19, 2010
progress notes are not relevant as they do not constitute competent medical evidence as a nurse
practitioner is not a physician under FECA.23
Appellant has submitted no medical evidence in conformance with the sixth edition of the
A.M.A., Guides, or The Guides Newsletter establishing that he has permanent impairment of a
scheduled member or function of the body due to his accepted lumbar sprain condition.
Consequently, appellant has not established entitlement to a schedule award.

18

Veronica Williams, 56 ECAB 367 (2005).

19

See G.F., Docket No. 16-0997 (issued November 15, 2016).

20

Supra note 9 at Chapter 2.808.7(a)(1); 20 C.F.R. § 10.404(c).

21

See G.R., Docket No. 18-0735 (issued November 15, 2018).

22
See P.D., Docket No. 17-1565 (issued February 21, 2018); J.D., Docket No. 17-0767 (issued
November 28, 2017).
23

See J.M., Docket No. 17-1603 (issued April 10, 2018); G.A., Docket No. 09-2153 (issued June 10, 2010). Section
8101(2) of FECA provides that physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists,
chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law. 5 U.S.C.
§ 8101(2).

5

Appellant may request a schedule award or an increased schedule award at any time based
on evidence of a new exposure or medical evidence showing a progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of his left lower extremity causally related to his accepted employment injury,
warranting a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the April 16, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 19, 2019
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Stone Mountain, GA, Employer
__________________________________________

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

Docket No. 17-1218
Issued: December 10, 2018

Case Submitted on the Record

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

JURISDICTION
On May 15, 2017 appellant filed a timely appeal from a February 15, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that he has greater
than 10 percent permanent impairment of the right upper extremity, for which he previously
received a schedule award.
FACTUAL HISTORY
On October 18, 2011 appellant, then a 41-year-old letter carrier, injured his right shoulder
while lifting trays and carrying mail. OWCP accepted his claim for sprain of the shoulder and

1

5 U.S.C. § 8101 et seq.

upper arm other specified sites on the right, rotator cuff syndrome of the shoulder and allied
disorders on the right, and brachial neuritis or radiculitis.
Appellant reached maximum medical improvement (MMI) on September 10, 2013.
OWCP paid appellant wage-loss compensation for temporary total disability through
September 10, 2013. On January 24, 2014 OWCP granted appellant a schedule award for 10
percent permanent impairment of the right arm. The award covered a period of 31.2 weeks from
September 11, 2013 to April 17, 2014, with a date of MMI of September 10, 2013. Appellant
returned to work on December 8, 2015 full-time, full duty. However, he had a limitation under
another claim and was working with limitations.2
On February 5, 2016 appellant filed a claim for an increased schedule award (Form CA-7).
In support of his claim, he submitted a February 2, 2016 impairment rating from Dr. John Foster,
III, a Board-certified orthopedic surgeon. In the February 2, 2016 report, Dr. Foster noted his
examination of appellant, provided findings, and utilized the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).3 He provided
findings for range of motion which included 100 degrees abduction, 130 degrees flexion, 60
degrees external rotation, and 30 degrees internal rotation. Dr. Foster determined that there was
no instability and motor and sensory examinations were normal. He diagnosed status post revision
right shoulder arthroscopy, arthroscopic subacromial decompression, scope Mumford, and
excision of scar tissue with mild arthrofibrosis of the right shoulder. Dr. Foster found 13 percent
right upper extremity permanent impairment. He explained that this meant, as he had a previous
rating of 10 percent, appellant was due an additional 3 percent for permanent impairment to the
right upper extremity. Dr. Foster advised that, if the prior rating had not been paid, then his
payment should be based upon his 13 percent right upper extremity rating. He indicated that
appellant was at full duty and should continue his current medication.
Dr. Jovito B. Estaris, a physician specializing in occupational medicine and preventive
occupational medicine and serving as an OWCP district medical adviser (DMA), reviewed the
report of Dr. Foster and utilized the sixth edition of the A.M.A., Guides. He explained that his
impairment calculation was based on the diagnosis of tendinitis as there was no rotator cuff tear or
impingement. Dr. Estaris referenced Table 15-5,4 the Shoulder Regional Grid and determined that
appellant had three percent upper extremity impairment of the right arm. He explained that he was
unable to find the diagnosis that Dr. Foster used for the impairment rating as there was no rotator
cuff tear, no impingement syndrome, no acromioclavicular joint injury or disease, no shoulder
instability, no labral lesions, or biceps tendon dislocation/subluxation. Dr. Estaris advised that
tendinitis was therefore the most appropriate diagnosis.

2

The record reflects that, under OWCP File No. xxxxxx42, appellant received a schedule award of 11 percent due
to permanent impairment to the left upper extremity. That case was previously on appeal before the Board. Docket
No. 11-0614 (issued November 2, 2011). The Board found that appellant had not met his burden of proof to establish
more than 11 percent permanent impairment of his left upper extremity, for which he previously received a schedule
award.
3

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

4

Id. at 402.

2

On July 5, 2016 OWCP requested clarification from Dr. Estaris. It noted that appellant
had previously received a schedule award for 10 percent permanent impairment to the right
shoulder. OWCP requested that Dr. Estaris clarify his opinion with regard to whether his rating
for tendinitis was in addition to the prior award.
In a July 8, 2016 response, Dr. Estaris explained that appellant was previously awarded
compensation for 10 percent permanent impairment of the right upper extremity and there was no
additional impairment under the A.M.A., Guides. He also noted that MMI had been reached on
February 2, 2016, the date of Dr. Foster’s report.
By letter dated September 9, 2016, OWCP advised appellant of the DMA’s findings. It
explained that he had previously received a schedule award for 10 percent permanent impairment
of the right arm and Dr. Estaris had found that there was no additional impairment. OWCP advised
appellant that a copy of the DMA’s report should be provided to his physician and he would be
afforded 30 days for the physician to respond.
In response, Dr. Foster completed an attachment to the schedule award development letter.
He provided range of motion findings, noted referencing the A.M.A., Guides, and opined that
appellant had 11 percent permanent impairment of the right shoulder.
On October 23, 2016 Dr. Estaris reviewed the supplemental report of Dr. Foster. He
explained that the impairment rating was based on the reports using the A.M.A., Guides to the
evaluation of permanent impairment. Dr. Estaris explained that the diagnosis was rotator cuff
tendinitis and referenced the shoulder regional grid at Table 15-5 for upper extremity impairment,
page 402. He advised that this grid was the basis for his initial rating. Dr. Estaris explained that
Dr. Foster was now using the range of motion (ROM) method for evaluating permanent
impairment which is located at page 475. He determined that appellant had abduction of 100
degrees or 3 percent upper extremity impairment, flexion of 130 degrees or 3 percent upper
extremity impairment, external rotation of 60 degrees or 0 percent upper extremity impairment,
and internal rotation of 30 degrees, and 4 percent upper extremity impairment, for a total of 10
percent right upper extremity impairment. Dr. Estaris referenced Table 15-35 for range of motion
grade modifiers at page 477, and found less than 12 percent total range of motion impairments,
which qualified for a grade modifier of one. He referenced Table 15-36, page 477 for functional
history grade adjustment and range of motion. Dr. Estaris determined that appellant had a grade
modifier of one due to shoulder discomfort. He referenced Table 15-7 for functional history
adjustment of the upper extremity at page 406. Dr. Estaris explained that, since the modifiers were
both one, they were equal and there was no change. He noted that, since there was a previous
award of 10 percent to the right upper extremity, no additional impairment had been incurred.
By decision dated February 15, 2017, OWCP denied appellant’s claim for a schedule award
based on the opinion of the DMA, Dr. Estaris.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has

3

vested the authority to implement the FECA program with the Director of OWCP.5 Section 8107
of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of use
of specified members, functions, and organs of the body.6 FECA, however, does not specify the
manner by which the percentage loss of a member, function, or organ shall be determined. To
ensure consistent results and equal justice under the law, good administrative practice requires the
use of uniform standards applicable to all claimants. Through its implementing regulations,
OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating schedule losses.7
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled, “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first printing
of the A.M.A., Guides. In April 2009, these changes were formally incorporated into the second
printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).8 The Board has approved the use by OWCP of the A.M.A., Guides
for the purpose of determining the percentage loss of use of a member of the body for schedule
award purposes.9
ANALYSIS
The issue on appeal is whether appellant has met his burden of proof to establish greater
than 10 percent permanent impairment of the right upper extremity, for which he previously
received a schedule award.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth edition
of the A.M.A., Guides when granting schedule awards for upper extremity claims. No consistent
interpretation had been followed regarding the proper use of the diagnosis-based impairment (DBI)
or the ROM methodology when assessing the extent of permanent impairment for schedule award
purposes.10 The purpose of the use of uniform standards is to ensure consistent results and to
ensure equal justice under the law to all claimants.11 In T.H., the Board concluded that OWCP
physicians were at odds over the proper methodology for rating upper extremity impairment,
5

See 20 C.F.R. §§ 1.1-1.4.

6

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C. § 8107(c)(1).

7

20 C.F.R. § 10.404; see also Ronald R. Kraynak, 53 ECAB 130 (2001).

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010);
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5a (February 2013).
9

Isidoro Rivera, 12 ECAB 348 (1961).

10

T.H., Docket No. 14-0943 (issued November 25, 2016).

11

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

4

having observed attending physicians, evaluating physicians, second opinion physicians, impartial
medical examiners, and district medical advisers use both DBI and ROM methodologies
interchangeably without any consistent basis. Furthermore, the Board observed that physicians
interchangeably cited to language in the first printing or the second printing when justifying use
of either ROM or DBI methodology. Because OWCP’s own physicians were inconsistent in the
application of the A.M.A., Guides, the Board found that OWCP could no longer ensure consistent
results and equal justice under the law for all claimants.12
In order to ensure a consistent result and equal justice under the law for cases involving
upper extremity impairment, the Board will set aside the February 15, 2017 decision. Utilizing a
consistent method for calculating permanent impairment for upper extremities applied uniformly13
and after such other development as may be deemed necessary, OWCP shall issue a de novo
decision on appellant’s claim for an upper extremity schedule award.
CONCLUSION
The Board finds that the case is not in posture for decision.

12

Supra note 9.

13

See FECA Bulletin No. 17-06 (issued May 8, 2017).

5

ORDER
IT IS HEREBY ORDERED THAT the February 15, 2017 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: December 10, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
North Metro, GA, Employer
__________________________________________

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Appearances:
Debra Hauser, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1032
Issued: September 26, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 26, 2013 appellant, through her attorney, filed a timely appeal from a
November 2, 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 this case.2
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation benefits
effective November 3, 2012 on the grounds that she no longer had any residuals or disability
causally related to her accepted employment-related injuries.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the November 2, 2012 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

On appeal, counsel contends that OWCP improperly: (1) relied upon evidence it received
from the employing establishment which was obtained in violation of federal regulations, citing
20 C.F.R. § 10.506, claiming appellant was not notified that an investigation was taking place
against her and that surveillance video was gathered, or that an investigator interviewed her
doctor; and (2) relied upon second opinion reports from Dr. Harold Alexander, a Board-certified
orthopedic surgeon, which were based on a prejudicial statement of accepted facts, that included
observations from surveillance video.
FACTUAL HISTORY
OWCP accepted that appellant, then a 46-year-old mail processing clerk, sustained a neck
strain and right shoulder strain in the performance of duty on March 16, 2009. On March 4,
2010 appellant accepted a limited-duty position, but stopped work on September 22, 2010 when
the employing establishment was no longer able to accommodate her work restrictions.3 She
was placed on the periodic rolls to receive wage-loss compensation and has not returned to work.
Dr. Scott Pennington, appellant’s attending physician and a Board-certified orthopedic
surgeon, in early April 2012, had produced a work evaluation which found that appellant could
not work her usual job. He restricted her from overhead activities and imposed a five-pound
limitation of pushing, pulling and lifting. Dr. Pennington stated that appellant had not reached
maximum medical improvement following her accepted work injury.
In a July 20, 2012 report, Dr. Pennington opined that appellant was capable of
performing her regular job duties and released her to full-duty work without restrictions.
A July 20, 2012 memorandum from the employing establishment’s Office of Inspector
General (OIG) indicated that special agents had conducted an in-person interview with
Dr. Pennington that same day. They informed him that appellant was being investigated for
workers’ compensation fraud and showed a surveillance video of her “engaged in activities using
her right arm with no indication of pain or discomfort.” The investigative report states that
Dr. Pennington felt appellant was being disingenuous in regards to her condition and opined that
she would be able to return to full duty without restrictions. He noted his new opinion in a
Form OWCP-5c (Work Capacity Evaluation -- musculoskeletal conditions) dated July 20, 2012.
Investigative reports dated August 14, 2012 from the employing establishment’s OIG
specified that surveillance video observed appellant bending over and releasing a bowling ball on
November 10, 2011 and using her right arm to retrieve an item from the top shelf at a grocery
store on February 7, 2012.4
In an August 20, 2012 letter to the employing establishment, OWCP indicated that it had
reviewed the July 20, 2012 investigative report and would refer appellant for a second opinion
examination in order to determine any further entitlement to compensation benefits. It noted that
the referral physician was to be provided with a copy of the surveillance video for review.
3

Appellant filed a notice of recurrence (Form CA-2a) on October 8, 2010.

4

The case record contains detailed surveillance reports for the period October 4, 2011 through July 19, 2012.

2

Appellant was referred to Dr. Harold N. Alexander, a Board-certified orthopedic surgeon, for a
second opinion evaluation on September 11, 2012 to determine the nature and extent of her
employment-related conditions. A statement of accepted facts was prepared and forwarded to
Dr. Alexander.
By letter dated September 6, 2012, OWCP notified appellant that it proposed to terminate
her compensation benefits based on the weight of the medical evidence, as represented by
Dr. Pennington. It allotted 30 days for appellant to submit additional evidence or argument in
disagreement with the proposed action.
In his September 20, 2012 report, Dr. Alexander conducted a physical examination and
reviewed the statement of accepted facts, history of the injury and the medical evidence of
record. He opined that appellant’s neck strain had resolved. Dr. Alexander noted that the
statement of accepted facts indicated that in February 2012 appellant was videotaped and
observed by a special agent using her right arm to reach above her head and push a shopping cart
in a grocery store. He indicated that his findings upon examination were inconsistent with the
surveillance video and when he asked her if she had difficulty reaching up on shelves, she
indicated that she did not do it and had her son do it. On October 25, 2012 Dr. Alexander
reviewed an October 4, 2012 magnetic resonance imaging (MRI) scan of the right shoulder and
found no rotator cuff tear and some degenerative change at the acromioclavicular (AC) joint. He
opined that appellant was capable of returning to her usual job with restrictions due to the fact
that she had been observed using the arm in a close to normal fashion. On a work capacity
evaluation form dated on or about October 25, 2012, Dr. Alexander checked a “yes” box
indicating that appellant could perform her usual job, but immediately below that question, he
also checked “yes” on a question box which indicated that appellant could not perform her usual
job but could work eight hours with restrictions. He then listed restrictions on sitting, walking,
standing, reaching, and reaching above the shoulder, twisting, bending, stooping, operating a
motor vehicle, repetitive movements of the wrists and elbows, squatting, kneeling, climbing and
prescribed 15- to 20-minute breaks morning and afternoon.
Subsequently, appellant submitted a September 29, 2012 narrative statement indicating
her belief that the employing establishment was allowed only to contact her doctor in writing
regarding her work limitations, never verbally. She also submitted a September 21, 2012 report
from Dr. Pennington. He indicated that he was presented by an inspector with a video of
appellant using her arm, including overhead activities, without difficulty, and because of that
information he placed her at maximum medical improvement and returned her to full-duty work.
In another report dated October 12, 2012, Dr. Pennington diagnosed resolved shoulder strain and
released her to regular duty.
By decision dated November 2, 2012, OWCP terminated appellant’s wage-loss
compensation benefits effective November 3, 2012. It did not terminate medical benefits.

3

LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.5 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.6 OWCP’s burden of proof includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.7 The
right to medical benefits for an accepted condition is not limited to the period of entitlement for
disability.8 To terminate authorization for medical treatment, OWCP must establish that
appellant no longer has residuals of an employment-related condition, which would require
further medical treatment.9
The purpose of a statement of accepted facts is to allow a physician to form an
impression of the individual and the evidence to be evaluated. The statement of accepted facts
should state the conditions claimed and accepted by OWCP, so the physician can assess whether
the diagnoses given in the medical evidence to be reviewed, as well as his own diagnoses, are
consistent with the condition(s) for which the claim was filed or accepted.10 OWCP procedures
provide that a statement of accepted facts must contain the date of injury, claimant’s age, the job
held on the date of injury, the mechanism of injury and the claimed or accepted conditions.
OWCP may also include additional elements, including appellant’s prior medical history,
depending on the nature of the condition claimed and the issues to be resolved.11 Not all
information contained in a case file bears on the issues to be resolved in connection with the
statement of accepted facts. Some information is irrelevant, while other material is inappropriate
prejudicial or better discussed elsewhere. Medical opinions should not be included in the
statement of accepted facts.12
The weight of medical evidence is determined by the opportunity for and thoroughness of
examination, the accuracy and completeness of the physician’s knowledge of the facts and
medical history, the care of analysis manifested and the medical rationale expressed in support of

5

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

6

See I.J., 59 ECAB 524 (2008); Elsie L. Price, 54 ECAB 734 (2003).

7

See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

8

See T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

9

See James F. Weikel, 54 ECAB 660 (2003).

10

Gwendolyn Merriweather, 50 ECAB 416 (1999); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Statement of Accepted Facts, Chapter 2.809 (September 2009).
11

Darletha Coleman, 55 ECAB 143 (2003).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Case/Disability Management, Chapter 2.809.7(c).

4

the opinion.13 Medical opinions based on incomplete history or which are speculative or
equivocal are of diminished probative value.14
ANALYSIS
OWCP accepted that appellant sustained a neck strain and right shoulder strain while in
the performance of duty and paid her wage-loss compensation. It bears a burden of proof to
establish that her work-related disability has ceased before it can terminate benefits.15
Following a meeting with special agents from the employing establishment’s OIG,
Dr. Pennington advised in a Form OWCP-5c dated July 20, 2012 that appellant was able to
return to full-duty work without restrictions. In its November 2, 2012 decision, OWCP
terminated appellant’s wage-loss compensation on the basis of Dr. Pennington’s July 20, 2012
form report and Dr. Alexander’s September 20 and October 25, 2012 second opinion reports.
The Board finds that the opinion of Dr. Pennington, expressed following the visit of the
Postal Inspectors, was tainted and cannot support a termination of benefits by OWCP.16
Dr. Pennington’s new opinion, dated July 20, 2012, that appellant could work full duty and
without restrictions at her preinjury job, was obtained by and delivered to OWCP by the Postal
Service OIG. It was totally different from the opinion the doctor had rendered less than three
months earlier. Dr. Pennington did not specifically explain what new evidence he had reviewed
or why it had caused him to reverse all his prior opinions. The record also shows no
involvement by OWCP in obtaining Dr. Pennington’s July opinion.
OWCP procedures governing second opinion examinations control and limit the use of
investigative material provided by the employing establishment.17 OWCP has more stringent
procedures to exclude surveillance video provided directly to a referee physician by the

13

James R. Taylor, 56 ECAB 420 (2005).

14

Cecelia M. Corley, 56 ECAB 662 (2005).

15

20 C.F.R. § 10.503, The Board has required thorough, explicit opinions supported by factual evidence and with
sufficient discussion to relate the facts with the conclusions reached. See T.C., Docket No. 13-441 (issued June 4,
2013) (the Board found that the termination standard was not met where medical opinion was that appellant could
do sedentary work but appellant’s date-of-injury job required higher level of activity); M.R., Docket No. 11-1566
(issued February 8, 2012) (the Board found that the termination standard was not met to show that appellant refused
suitable employment); N.S., Docket No. 10-303 (issued October 14, 2010) (the Board affirmed standard to terminate
met and discussed medical evidence); R.M., Docket No 08-1736 (issued June 9, 2008); (the Board found that the
termination standard was not met to show refusal of suitable employment and discussed medical evidence) .
16

F.S., Docket No. 11-863 (issued September 26, 2012); A.P., Docket No. 13-30 (issued March 18, 2003).

17

A second opinion specialist may be instructed by the claims examiner to disregard video evidence submitted
directly to him or her by the employing establishment where the agency fails to provide a copy of the evidence to the
claims examiner. Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical
Evidence, Chapter 2.810.9g (June 2014).

5

employing establishment.18 These Board precedents and the provisions of the procedure manual
operate in harmony together to assure that OWCP will retain control of the administration of
claims and can communicate with the claimant based upon a full knowledge of the case.19
In addition to the opinion of Dr. Pennington, OWCP relied, in its November 2, 2012
termination decision, on the second opinion physician, Dr. Alexander, and his report of
September 20, 2012 and an addendum dated October 25, 2012. It correctly recognized that the
report of Dr. Pennington, dated July 20, 2012, lacked rationale to explain why his opinion had
changed and why appellant could return to full-duty work. OWCP thus properly scheduled a
second opinion examination.20 It is not precluded from providing surveillance evidence to an
unbiased physician provided it follows the procedure manual.21
OWCP provided Dr. Alexander with a statement of accepted facts dated September 6,
2012 which amended an earlier statement of accepted facts dated August 20, 2012 by adding the
following paragraph:
“In February 2012, the claimant was observed and videotaped by a Special Agent
of the US Postal Service Office of the Inspector General. The claimant was
observed shopping at a grocery store, using her right arm and reaching above her
head without any sign of discomfort. (Emphasis added.) The claimant shopped
in the store for approximately 45 minutes. During the time, she pushed the
shopping cart, reached above her head with her right arm and unloaded her cart
using her right arm. She also closed the tailgate on her sport utility vehicle with
her right arm.”22
Appellant contends that the repetition of statements from the investigative report was
prejudicial to her and influenced the doctor’s opinion on whether she was disabled and whether

18

“If a surveillance video is provided by the EE [employing establishment] directly to a medical specialist acting
in the capacity of a referee physician, the CE [claims examiner] should advise the EE that the physician’s opinion
has been tainted and will be excluded from consideration in OWCP’s decision. If there is convincing evidence that
the surveillance video is vital to the case and should be used, the CE should direct the EE to provide OWCP with a
copy of the video to be used in conjunction with a referral to a new referee specialist.” Federal (FECA) Procedure
Manual, id. at Chapter 2.810.12a.
19

OWCP directs claims examiners to monitor the eligibility of claimants who receive benefits. The claims
examiner is directed to provide a copy to the claimant of any request for information from the claimant’s attending
physician. Federal (FECA) Procedure Manual, Part 2 -- Claims, Periodic Review of Disability Cases, Chapter
2.812.6 (May 2012).
20

The Board notes that on or about August 27, 2012 a special agent of the OIG called OWCP to express concern
and request the reason a second opinion examination had been scheduled for appellant. The call notation in the
record indicates that OWCP had determined that the opinion of Dr. Pennington lacked the necessary explanation and
rationale to support termination.
21

J.M., supra note 7.

22

This language is an exact quote from the investigative report on surveillance except that the report named the
grocery store.

6

she could work. The Board finds that the addition of the words “without any sign of discomfort”
was a statement of opinion and should not have been placed in the statement of accepted facts.23
On appeal, counsel contends that OWCP improperly relied upon evidence it received
from the employing establishment which was obtained in violation of federal regulations, citing
20 C.F.R. § 10.506, which prohibits an employing establishment from contacting a claimant’s
treating doctor in person or by phone, but allows contacts in writing.24 To facilitate a disabled
employee’s return to suitable work, an employing establishment may contact his or her physician
in writing with regard to the physical limitations imposed by the effects of the industrial injury
and possible job assignments.25 The Board has never construed this regulation to prohibit
contacts by an employing establishment’s OIG in the course of an investigation of irregularities
in a specific claim. The Board has explicitly acknowledged that it lacks authority to rule on the
actions of an employing establishment.26 The authority of the Board extends only to decisions
appealed from OWCP.27
Appellant offers a second argument that OWCP’s decision should be reversed because
she was not notified that an investigation was in process concerning her claim. This misreads
Board precedent because the Board has never held that OWCP or the employing establishment
must notify every claimant of every investigation. OWCP has only held that it must inform the
claimant if it intends to provide surveillance video evidence to a physician for the purpose of
obtaining a medical opinion.28 Given the disposition of this appeal, the Board need not reach the
question of whether appellant received notice that OWCP planned to ask Dr. Alexander to
consider the surveillance video in forming his opinion.
The Board reverses the termination of benefits in this case for the reasons stated.

23

Federal (FECA) Procedure Manual, supra note 12.

24

The question of whether a direct contact between the employing establishment and a treating doctor has been
raised by appellant’s counsel and is mentioned by the Board in its analysis but OWCP’s decision was set aside on
other grounds. D.S., Docket No. 07-2258 (issued June 5, 2008).
25

20 C.F.R. § 10.506. “The employer may monitor the employee’s medical progress and duty status by obtaining
periodic medical reports. Form CA-17 is usually adequate for this purpose. To aid in returning an injured employee
to suitable employment, the employer may also contact the employee’s physician in writing concerning the work
limitations imposed by the effects of the injury and possible job assignments. (However, the employer shall not
contact the physician by telephone or through personal visit.) When such contact is made, the employer shall send a
copy of any such correspondence to OWCP and the employee, as well as a copy of the physician’s response when
received. The employer may also contact the employee at reasonable intervals to request periodic medical reports
addressing his or her ability to return to work.” See id.
26

The investigative practices of the Postal Service, OIG, are not within the jurisdiction of ECAB.” F.S., Docket
No. 11-863 (issued September 26, 2012). See also D.B., Docket No. 14-451 (issued August 12, 2014).
27

Margaret A. Hoskin, 9 ECAB 186 (1956).

28

J.M., supra note 7.

7

CONCLUSION
The Board finds that OWCP improperly terminated appellant’s compensation benefits
effective November 3, 2012.
ORDER
IT IS HEREBY ORDERED THAT the November 2, 2012 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: September 26, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees' Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.R., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Butner, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-0797
Issued: July 20, 2016

Case Submitted on the Record

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

JURISDICTION
On March 11, 2016 appellant filed a timely appeal from a February 22, 2016 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
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $2,799.06 from December 14, 2015 to January 9, 2016 because she returned to work,
but continued to receive compensation for total disability; and (2) whether OWCP properly
denied waiver of the overpayment.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted new evidence with her appeal. The Board, however, has no jurisdiction to review new
evidence on appeal; see 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On February 21, 2014 appellant, then a 34-year-old correctional officer, filed a traumatic
injury claim (Form CA-1) alleging that on February 12, 2014 she sprained her right ankle when
she slipped on ice.3 OWCP accepted the claim for a right ankle sprain of the deltoid ligament
and a late effect fracture of the right lower extremity.
Following her injury, appellant underwent surgery to repair a Lisfranc fracture of the
right foot. She returned to limited-duty employment on January 15, 2015.
On October 27, 2015 appellant underwent surgery to remove hardware in the right foot.
OWCP placed appellant on the periodic rolls and paid her compensation by electronic funds
transfer effective October 26, 2015.
Appellant returned to work without restrictions on December 14, 2015. On January 9,
2016 OWCP paid appellant $2,902.73 in compensation by electronic funds transfer for the
period December 13, 2015 to January 9, 2016.
By letter dated January 12, 2016, OWCP advised appellant of its preliminary
determination that she received an overpayment of $2,799.06 for the period December 14, 2015
to January 9, 2016 because she received wage-loss compensation for total disability after she
returned to work. It calculated the overpayment by dividing $2,902.73, the net amount of
compensation she received on the periodic rolls, by 28, the duration of the payment period, to
find a daily payment of $103.67. OWCP multiplied this amount by the 27-day period it paid
appellant after she resumed work to find an overpayment of $2,799.06. It further informed her
of its preliminary determination that she was not at fault in the creation of the overpayment.
OWCP requested that appellant complete an enclosed overpayment recovery questionnaire
(OWCP Form 20) and submit supporting financial documents. Additionally, it notified her that,
within 30 days of the date of the letter, she could request a telephone conference, a final decision
based on the written evidence, or a prerecoupment hearing.
On February 10, 2016 appellant requested a decision on the written evidence. She
advised that she was without fault in creating the overpayment and requested waiver. In an
attached overpayment recovery questionnaire, appellant listed monthly income as $2,600.00 in
benefits from the Social Security Administration (SSA) and monthly expenses of $2,032.30,
including $1,157.30 for rent or mortgage, $500.00 and up for food, a variable amount for
clothing, and $300.00 and up for other expenses. She also paid a total of $70.00 per month on
two credit cards. Appellant indicated that she had no assets. She enclosed financial
documentation showing that she owed $96.83 on a vehicle insurance policy, $109.70 for current
electric utility charges, $158.84 for monthly water and sewer, $1,157.30 for her mortgage,
$156.88 for telephone, $509.60 for dental expenses, $20.00 for a credit card, and $55.00 for
another credit card, $63.50 for homeowner’s association dues, and $36.71 for a physician’s care.

3

The employing establishment originally alleged that appellant was not in the performance of duty as she fell in
the parking lot. However, it subsequently confirmed that she was on its property at the time of her fall.

2

By decision dated February 22, 2016, OWCP found that appellant received an
overpayment of $2,799.06 because she received disability compensation from December 14,
2015 to January 9, 2016 after she resumed employment. It determined that she was without fault
in creating the overpayment, but denied waiver as her income exceeded her expenses by more
than the allowed amount. OWCP found that appellant did not properly disclose her income, as
she resumed work at a salary of $55,699.00 per year, which it divided by 12 to find monthly
income of $4,641.58 per month. It added $218.05 per month in premium pay and the provided
SSA amount of $2,600.00 to find total earnings of $7,459.63 per month. OWCP added the listed
expenses of $1,157.30 for a mortgage, $500.00 for food, variable for clothing, $300.00 for other
expenses, $20.00 to Credit Union, and $55.00 to Capital One to find a total of $2,032.30. It also
added other documented expenses of $96.83 for automobile insurance, $109.70 for electricity,
$158.84 for water, $123.93 for telephone, $58.50 for her homeowner’s association, $509.60 for a
dental bill, and $36.71 for a doctor’s bill, to find total expenses of $3,126.41. OWCP concluded
that appellant’s listed monthly expenses, even without investigation or sufficient documentation,
were significantly less than her monthly income and thus denied waiver. It found that she should
forward the total amount of the overpayment as repayment.
On appeal appellant contends that OWCP improperly calculated her monthly income.
She advises that she did not receive benefits from SSA and that her monthly income was
$3,200.00. Appellant attached earnings and leave statements.
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.4
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, she
may not receive salary, pay, or remuneration of any type from the United States, except in
limited circumstances.5 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 her from earning the wages earned before the work-related injury.”6
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of $2,799.06. OWCP paid her
wage-loss compensation beginning October 26, 2015 after she underwent right foot surgery.
Appellant returned to work on December 14, 2015, but continued to receive compensation until
January 9, 2016. As appellant returned to regular work, she was not entitled to receive

4

5 U.S.C. § 8102.

5

Id. at § 8116(a).

6

20 C.F.R. § 10.500.

3

compensation after December 14, 2015.7 Accordingly, the Board finds that appellant received an
overpayment of compensation.
OWCP calculated the overpayment by determining the amount that it paid appellant for
the period. Appellant has not challenged either the fact or amount of overpayment.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA5 provides that an overpayment must be recovered unless
“incorrect payment has been made to an individual who is without fault and when adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience.”
(Emphasis added.) Thus, a finding that appellant was without fault does not automatically result
in waiver of the overpayment. OWCP must then exercise its discretion to determine whether
recovery of the overpayment would defeat the purpose of FECA or would be against equity and
good conscience. 6
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose
of FECA if recovery would cause hardship because the beneficiary needs substantially all of her
income (including compensation benefits) to meet current ordinary and necessary living
expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data provided by the Bureau of Labor Statistics.8 An individual’s liquid assets
include, but are not limited to case, the value of stocks, bonds, savings accounts, mutual funds,
and certificates of deposits.9 Nonliquid assets include, but are not limited to, the fair market
value of an owner’s equity in property such as a camper, boat, second home, and furnishings and
supplies.10
Section 10.437 provides that 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 her position for the worse.11 To establish that a valuable right has been relinquished, it
must be shown that the right was in fact valuable, that it cannot be regained and that the action
was based chiefly or solely in reliance on the payments or on the notice of payment.12

7

See 5 U.S.C. § 8116(a); 20 C.F.R. § 10.500.

8

20 C.F.R. § 10.436. OWCP procedures provide that assets must not exceed a resource base of $4,800.00 for an
individual or $8,000.00 for an individual with a spouse or dependent plus $960.00 for each additional dependent.
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a)
(October 2004).
9

Id.

10

Id.

11

20 C.F.R. § 10.436.

12

Id. at § 10.437(b)(1).

4

ANALYSIS -- ISSUE 2
OWCP found that appellant was without fault in creating the overpayment of
compensation and thus considered whether she was entitled to waiver of the overpayment.
Waiver is only possible if recovery would defeat the purpose of FECA or would be against
equity and good conscience. In order to establish that repayment of the overpayment would
defeat the purpose of FECA, appellant must show that she requires substantially all of her
income to meet current ordinary and necessary living expenses and that her assets do not exceed
the established limit as determined by OWCP’s procedures.13
On the overpayment recovery questionnaire, appellant indicated that she received
monthly income of $2,600.00 from SSA. She listed expenses totaling $3,126.41 and provided
some documentation. OWCP determined that appellant did not disclose her employment
earnings, which it found to be $55,699.00 per year or $4,641.58 per month in gross
compensation. It added this amount to the listed SSA benefits to find income of $7,459.63 per
month, which exceeded all the disclosed expenses of $3,126.41 by more than the allowed
amount of $50.00.14
On appeal appellant argues that she mistakenly put down earnings from SSA. She,
however, did not report her monthly income from employment as required on the overpayment
recovery questionnaire. Appellant has the burden to submit evidence regarding her income,
expenses, and assets to OWCP in order to determine whether waiver would defeat the purpose of
FECA or defeat equity and good conscience.15
Additionally, the evidence does not demonstrate that repayment of the overpayment
would be against equity and good conscience. Appellant submitted no evidence that she relied
upon the incorrect payments to her detriment or that she would experience severe financial
hardship attempting to repay the debt. Consequently, OWCP properly denied waiver of recovery
of the overpayment.
The Board’s jurisdiction is limited to reviewing those cases where OWCP seeks recovery
from continuing compensation under FECA.16 As appellant was not in receipt of continuing
compensation benefits at the time the final decision was entered in this matter, the Board lacks
jurisdiction to review recovery of the overpayment.

13

Id. at § 10.436.

14

An individual is deemed to need substantially all of her current income to meet current ordinary and necessary
living expenses if monthly income does not exceed monthly expenses by more than $50.00. Supra note 8 at Chapter
6.200.6(a)(1) (October 2004); see also N.M., Docket No. 15-1460 (issued October 27, 2015).
15

20 C.F.R. § 10.438.

16

See id. at § 10.441(a); Ronald E. Ogden, 56 ECAB 278 (2005).

5

CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $2,799.06 from December 14, 2015 to January 9, 2016 because she returned to work, but
continued to receive compensation for total disability. The Board further finds that OWCP
properly denied waiver of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the February 22, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 20, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6