United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
DEPARTMENT OF THE ARMY,
INSTALLATION MANAGEMENT
COMMAND, Joint Base Lewis-McChord, WA,
Employer
__________________________________________

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

Docket No. 14-1737
Issued: February 4, 2015

Case Submitted on the Record

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

JURISDICTION
On August 4, 2014 appellant timely appealed a May 22, 2014 merit decision of the Office
of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. §§ 8101-8193 (2006).

On his August 4, 2014 application for review (AB-1), appellant identified the following OWCP case files as the
subject of the current appeal: xxxxxx607; xxxxxx906 and xxxxxx993. He also identified April 22, 2014 as the date
of OWCP decision being appealed. The latest decision under claim number xxxxxx607 is dated May 22, 2014, and
is properly before the Board. Claim number xxxxxx906 has been deleted. Lastly, claim number xxxxxx993
pertains to a June 18, 2013 traumatic injury, which OWCP denied by decision dated January 16, 2014. Appellant
filed the current AB-1 more than 180 days after OWCP’s January 16, 2014 decision under claim number
xxxxxx993. Accordingly, that claim and associated decision does not fall within the Board’s jurisdiction. 20 C.F.R.
§ 501.3(e) (2014).

ISSUE
The issue is whether appellant established that he sustained an abdominal injury in the
performance of duty on March 30, 2009.
FACTUAL HISTORY
On April 7, 2009 appellant, then a 39-year-old materials examiner and identifier, filed a
traumatic injury claim (Form CA-1), alleging that he sustained for an abdominal injury on
March 30, 2009.3 He described having felt a sharp burning sensation in his lower right stomach
and pelvis area. Appellant also noted a visible testicle bulge on the right. He had been carrying
antenna mounts weighing 15 to 20 pounds each, and stacking them on pallets. Appellant
reported carrying several antenna mounts at a time for a distance of 40 feet.
On March 31, 2009 appellant was seen in the employing establishment’s occupational
health clinic for complaints of abdominal pain.4 He reported having injured himself the previous
evening while carrying several pieces of equipment each weighing approximately 20 pounds.
Visual inspection revealed a normal appearing abdomen. Also, there were no abnormalities with
respect to abdominal auscultation, percussion, and palpation. Physical examination revealed no
ventral or umbilical hernias. Appellant chose to forgo an inguinal examination, preferring
instead to consult with his primary care physician. Pending further evaluation, he was released
to return to work in a limited-duty capacity. The final assessment was “abdominal pain” due to
“physical trauma at workplace.”
An April 1, 2009 duty status report (Form CA-17) noted that appellant was a material
mover who had been injured on March 30, 2009. The CA-17 form did not include a history of
injury. The reported diagnosis code (ICD-9) was “848.8L,” which Brad Goldworm, a physician
assistant, identified as chest wall muscle strain. Mr. Goldworm recommended that appellant
avoid heavy lifting greater than 10 pounds.
In June 2009, OWCP received a copy of appellant’s position description and pay rate
information. There was no additional activity on the claim for approximately four years.
On June 21, 2013 appellant filed an occupational disease claim (Form CA-2) with an
April 22, 2009 date of injury.5 He noted that, while on a detail in March 2009, he was carrying
heavy components and experienced pain and a burning sensation in the upper abdomen and
testicle region. Although appellant subsequently returned to full duty, he reportedly continued to
experience a burning sensation in his abdomen. His detail as a materials examiner had been
extended indefinitely, and over a four-year period his abdominal condition reportedly worsened
3

At the time of the alleged injury, appellant was on a temporary detail. His regular position was as an electronic
digital computer mechanic.
4

Appellant was examined by a physician assistant; however, the March 31, 2009 treatment notes were reviewed
and countersigned by Dr. Gregory J. Martin, who is Board-certified in occupational, public health and general
preventive medicine.
5

Assigned OWCP File No. xxxxxx705.

2

to a herniated state. Appellant’s claimed conditions included abdominal strain, anterior hernia,
and umbilical hernia.6
OWCP determined that the June 21, 2013 abdominal claim was a duplicate of the April 7,
2009 CA-1 form.
Appellant visited the employing establishment’s occupational health clinic on June 14
and 18, 2013. On both occasions he was seen by Dr. Steven R. Smith, who is Board-certified in
preventive/occupational medicine. On June 14, 2013 appellant complained of abdominal pain
that had been present since a 2009 injury and had reportedly gotten worse as a result of having
been detailed to a more physical job.7 Dr. Smith noted that appellant apparently pulled an
abdominal muscle in 2009 and received treatment for a brief period before stopping. He
diagnosed ventral and umbilical abdominal hernias. Dr. Smith suggested that the umbilical
hernia should be surgically repaired first. He further noted that the ventral hernia was small and
may stabilize if appellant were moved away from heavy lifting and carrying. Dr. Smith
explained that individuals who develop ventral hernias are not good candidates for heavy work
as they will likely develop other hernias in time. He imposed work restrictions with respect to
pushing, pulling, lifting, and carrying. Dr. Smith also advised against operating a forklift and
instructed appellant to avoid climbing ladders and stairs, except to get to work. When appellant
returned on June 18, 2013, Dr. Smith provided the same diagnoses relative to appellant’s
abdominal complaints. He noted that appellant had been detailed to a job -- materials examiner
and identifier -- that he was unfit to perform. Dr. Smith indicated that appellant’s ventral hernia
probably started with his original abdominal claim from 2009.
On July 2, 2013 Dr. Gregory D. Gutke examined appellant and diagnosed diastasis of
abdominal muscles.8 Appellant’s chief complaints included abdominal bulge. He denied any
specific injury or disease, but in the spring of 2009 he noted a gradually widening gap on the
midline of his abdomen with burning pain. Eventually, there was a reducible mass protruding
through the gap. Dr. Gutke noted that appellant was previously seen on April 1, 2009 for the
abdominal mass and was told he had no visible mass. At the time, the health care provider
reportedly refused to see appellant for follow up. Dr. Gutke indicated that repetitive strain
probably caused a cumulative trauma condition.9 Appellant also submitted a July 2, 2013 duty
status report (Form CA-17) and an attending physician’s report (Form CA-20). Both form
reports identified March 30, 2009 as the date of injury and listed diastasis (ICD-9 728.84) as the
diagnosis due to injury. Dr. Gutke noted the following history of injury: “No specific
precipitating event, but noticed painful bulging abdominal mass in spring 2009.”
A July 19, 2013 abdominal wall ultrasound revealed 5.5 cm distance between the medial
margins of each end of the rectus abdominis (abs) muscles. Appellant also had a computerized
tomography (CT) scan of the abdomen and pelvis. The September 7, 2013 CT scan revealed a
6

He also reported left Achilles tendinitis, right elbow/shoulder tendinitis, and obesity.

7

Appellant also complained of Achilles tendon swelling and pain, as well as shoulder and elbow pain.

8

Dr. Gutke is Board-certified in occupational, public health and general preventive medicine.

9

In addition to diastasis, Dr. Gutke diagnosed left Achilles tendinitis, right elbow strain, and low back strain.

3

midline fatty umbilical hernia of the anterior abdominal wall. There was also evidence of small
bilateral inguinal hernias.
On October 1, 2013 appellant consulted with Dr. Daniel S. Salyer, a Board-certified
surgeon, who reviewed the recent CT scan and also examined appellant. Dr. Salyer noted the CT
scan revealed bilateral inguinal hernias, a small umbilical hernia, and large diastasis. He noted
that the umbilical hernia could be surgically repaired, but appellant weighed in excess of 300
pounds, and thus, was not an optimal candidate for surgical intervention. Dr. Salyer indicated
that weight loss would significantly decrease the risk of recurrence and would aid in the repair.
He also noted that appellant’s very wide diastasis was the result of his obesity, and was not
amenable to surgery. Lastly, Dr. Salyer advised that the bilateral inguinal hernias could be
surgically repaired, but not simultaneously. Appellant decided against proceeding with surgery
at the time.
In a May 22, 2014 decision, OWCP denied appellant’s traumatic injury claim. The
evidence of record failed to establish that his current abdominal condition was causally related to
the March 30, 2009 employment incident.
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.10
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether “fact of injury” has been established. Generally, fact
of injury consists of two components that must be considered in conjunction with one another.
The first component is whether the employee actually experienced the employment incident that
allegedly occurred.11 The second component is whether the employment incident caused a
personal injury.12 An employee may establish that an injury occurred in the performance of duty
as alleged, but fail to establish that the disability or specific condition for which compensation is
being claimed is causally related to the injury.13

10

20 C.F.R. § 10.115(e), (f) (2012); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

11

Elaine Pendleton, 40 ECAB 1143 (1989).

12

John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question that generally requires
rationalized medical opinion evidence to resolve the issue. See Robert G. Morris, 48 ECAB 238 (1996). A
physician’s opinion on whether there is a causal relationship between the diagnosed condition and the implicated
employment factor(s) must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB
345, 352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of
medical certainty, and must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment factor(s). Id.
13

Shirley A. Temple, 48 ECAB 404, 407 (1997).

4

ANALYSIS
Appellant initially claimed to have sustained an abdominal injury on March 30, 2009
while carrying and stacking antenna mounts weighing approximately 15 to 20 pounds each. He
described having felt a sharp burning sensation in his lower right stomach and pelvis area.
Appellant also noted a visible testicle bulge on the right. However, when examined on
March 31, 2009 for complaints of abdominal pain, visual inspection revealed a normal appearing
abdomen, and physical examination revealed no ventral or umbilical hernias.14 Other than the
noted abdominal pain, there was no specific diagnosis provided. Pain is not a diagnosis, and
subjective complaints of pain are not sufficient, in and of themselves, to support compensation
benefits under FECA.15
Mr. Goldworm, a physician assistant, provided an April 1, 2009 duty status report CA-17
form with a diagnosis of chest wall muscle strain (ICD-9 “848.8L”). Although the CA-17 form
identified March 30, 2009 as the date of injury, the report did not include a history of injury or a
description of clinical findings. Apart from these deficiencies, Mr. Goldworm’s diagnosis is of
limited probative value. Certain health care providers such as physician assistants, nurse
practitioners, physical therapists, and social workers are not considered “physician[s]” as defined
under FECA.16 Consequently, their medical findings and/or opinions will not suffice for
purposes of establishing entitlement to FECA benefits.17
Four years later, appellant filed a CA-2 claim form for an abdominal injury dating back to
April 22, 2009. He explained that his initial 2009 injury from carrying heavy components had
since worsened to a herniated state. The June 21, 2013 claim was for abdominal strain, anterior
hernia, and umbilical hernia, which OWCP determined that was a duplicate of appellant’s
March 30, 2009 traumatic injury claim.18
The medical evidence OWCP received in conjunction with the June 2013 CA-2 form
claim includes various diagnoses, but the question remains as to whether appellant’s current
abdominal condition is causally related to the March 30, 2009 employment incident.
First, the July 19 and September 7, 2013 diagnostic studies did not specifically address
the etiology of the noted diastasis and/or hernias. Dr. Smith, who initially examined appellant on
June 14, 2013, diagnosed ventral and umbilical hernias. He noted that appellant complained of
abdominal pain dating back to a 2009 injury, which had worsened as a result of having been
14

At the time, appellant chose to forgo an inguinal examination.

15

20 C.F.R. § 10.501(a)(3).

16

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

17

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a
physician assistant or certified nurse practitioner will be considered medical evidence if countersigned by a qualified
physician. Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1)
(January 2013).
18

The June 2013 claim also included injuries to appellant’s left lower extremity and right upper extremity, which
OWCP has not addressed under the instant claim for injury arising on March 30, 2009.

5

detailed to a more physical job. Dr. Smith further noted that appellant apparently pulled an
abdominal muscle in 2009. When appellant returned on June 18, 2013, Dr. Smith again
diagnosed ventral and umbilical hernias. He indicated that appellant’s ventral hernia probably
started with his original abdominal claim from 2009. However, the March 31, 2009 treatment
notes reviewed by Dr. Martin clearly indicated “No hernia was discovered” at that time. Also,
there was no record of appellant having pulled or strained an abdominal muscle in 2009.
Moreover, there is no evidence of bridging symptoms relating appellant’s current abdominal
complaints to the March 30, 2009 employment incident. In fact, there is no evidence of him
having received any medical treatment for abdominal complaints over the more than four-year
period spanning April 2009 through June 2013. Dr. Smith’s opinion on causal relationship,
therefore, is not based on a complete factual and medical background.
Dr. Gutke examined appellant on July 2, 2013 and diagnosed diastasis of abdominal
muscles. Appellant reportedly denied any specific injury or disease, but noted having developed
a gradually widening gap on the midline of his abdomen with burning pain in the spring of 2009.
Eventually, there was a reducible mass protruding through the gap. Dr. Gutke indicated that
repetitive strain probably caused a cumulative trauma condition. In addition to his narrative
report, Dr. Gutke submitted a July 2, 2013 duty status report (Form CA-17) and an attending
physician’s report (Form CA-20), which both identified March 30, 2009 as the date of injury and
noted “No specific precipitating event....” Despite referencing the March 30, 2009 injury date,
he did not attribute appellant’s diastasis to carrying and stacking antenna mounts weighing
approximately 15 to 20 pounds each. Also, Dr. Gutke’s July 2, 2013 form reports tend to
contradict his narrative report wherein he stated that “repetitive strain ... caused a cumulative
trauma condition....” Accordingly, his reports are insufficient to establish a causal relationship
between appellant’s current abdominal condition and his March 30, 2009 employment exposure.
Lastly, Dr. Salyer’s October 1, 2013 surgery consultation did not address the cause of
appellant’s bilateral inguinal hernias and small umbilical hernia. With respect to appellant’s
“very wide diastasis,” he attributed the condition to obesity.
The Board finds that the medical evidence of record fails to substantiate appellant’s claim
of an employment-related abdominal condition arising on March 30, 2009. The initial March 31,
2009 finding of abdominal pain is not, by itself, sufficient to justify acceptance of the claim.
Appellant appears to have gone without medical treatment for more than four years. The recent
2013 diagnoses of diastasis and various abdominal hernias were not shown to be causally related
to his March 30, 2009 employment exposure. Accordingly, appellant has not met his burden of
proof to establish that he sustained an abdominal injury in the performance of duty on
March 30, 2009.
CONCLUSION
Appellant failed to meet his burden of proof to establish that he sustained an abdominal
injury in the performance of duty on March 30, 2009.

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ORDER
IT IS HEREBY ORDERED THAT the May 22, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 4, 2015
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7


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

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

Docket No. 10-597
Issued: November 22, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 30, 2009 appellant filed a timely appeal of a November 17, 2009 Office of
Workers’ Compensation Programs’ merit decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has more than four percent impairment of the right upper
extremity and one percent impairment of the left upper extremity for which she received
schedule awards.
FACTUAL HISTORY
On December 11, 2007 appellant, then a 38-year-old mail handler, filed an occupational
disease claim alleging that she developed carpal tunnel syndrome due to her employment duties.
She underwent electrodiagnostic studies, including nerve conduction studies on
December 10, 2007. On January 7, 2008 the Office accepted appellant’s claim for right carpal
tunnel syndrome. In a letter dated February 11, 2008, it accepted the additional conditions of

ulnar/cubital tunnel syndrome on the right. The Office accepted the condition of left carpal
tunnel syndrome on February 26, 2008.
Dr. Richard D. Shin, a Board-certified surgeon, performed right endoscopic carpal tunnel
decompression on March 11, 2008. On April 11, 2008 he performed left endoscopic carpal
tunnel decompression. Appellant returned to light-duty work on June 18, 2008.
In a report dated July 18, 2008, Dr. Shin advised that appellant had reached maximum
medical improvement with respect to her bilateral carpal tunnel syndrome. He found a positive
Tinel’s sign over the right cubital tunnel and positive elbow flexion/compression test. Dr. Shin
stated that appellant’s current symptoms were due to right cubital tunnel syndrome. The Office
authorized anterior transposition of the ulnar nerve in the right elbow on December 10, 2008.
Dr. Shin performed this surgery on December 12, 2008.
Appellant returned to light-duty work on March 13, 2009. In a report dated June 12,
2009, Dr. Shin stated that she had reached maximum medical improvement with regard to her
right elbow. He stated that appellant had normal active range of motion and adequate grip and
pinch strength. Dr. Shin opined that her level of permanent disability was mild. On
June 16, 2009 appellant requested a schedule award.
Dr. Shin evaluated appellant’s permanent impairment on July 2, 2009 found normal range
of motion in the wrists. He also noted mild intermittent alteration of sensation in the right ulnar
nerve distribution. Dr. Shin indicated that appellant and an impairment rating between 0 to 10
percent. In evaluating appellant’s right elbow, he found minimal alteration of sensation around
the incision, normal range of motion and minimal intermittent numbness and tingling involving
right ring and small fingers. Dr. Shin opined that appellant had 10 percent impairment.
The Office medical adviser, Dr. Neil Ghodadra, reviewed the medical evidence on
August 23, 2009. He rated appellant’s permanent impairment in accordance with the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment.1 The Office medical adviser found that appellant’s history of carpal tunnel
syndrome with mild symptoms and normal functional scale was a grade modifier 1 impairment
and one percent impairment for each upper extremity based on Table 5-23 of the A.M.A.,
Guides.2 He found that residual compression symptoms of the right ulnar nerve with mild
intermittent symptoms and decreased sensation lead to a high grade modifier 1 impairment and
an impairment rating of three percent. The Office medical adviser concluded that appellant had
four percent impairment of the right upper extremity and one percent impairment of the left
upper extremity.
By decision dated November 17, 2009, the Office granted appellant schedule awards for
four percent impairment of the right upper extremity and one percent impairment of the left
upper extremity.

1

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

2

Id. at 449, Table 15-23.

2

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 provides
for compensation to employees sustaining impairment from loss or loss of use of specified
members of the body. The Act, however, does not specify the manner in which the percentage
loss of a member shall be determined. The method used in making such determination is a
matter which rests in the sound discretion of the Office. For consistent results and to ensure
equal justice, the Board has authorized the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
Office as a standard for evaluation of schedule losses and the Board has concurred in such
adoption. Effective May 1, 2009, the Office began using the sixth edition of the A.M.A., Guides
to calculate schedule awards.4
For evaluating impairment related to dysfunction of the median and ulnar nerves, the
sixth edition of the A.M.A., Guides (6th ed. 2009) contains Appendix 15-B (Electrodiagnostic
Evaluation of Entrapment Syndromes). It provides that the criteria for carpal tunnel syndrome
include distal motor latency longer than 4.5 milliseconds for an 8-centimeter study; distal peak
sensory latency longer than 4.0 centimeters for a 14-centimeter distance; and distal peak
compound nerve latency of longer than 2.4 milliseconds for a transcarpal or midpalmar study of
8 centimeters. If different distances were used in testing, correction to the above-stated distances
could be accomplished by assuming each one centimeter of distance required 0.2 milliseconds.5
For ulnar nerve entrapment there must be motor conduction velocity less than 50 milliseconds
for an 8 to 10-centimeter segment of the nerve posterior to the elbow, or an above elbow to
below elbow 8 to 10-centimeter segment conduction velocity that is at least 10 milliseconds
slower than the conduction velocity in the below elbow to wrist segment.
If carpal tunnel syndrome or cubital tunnel syndrome is found under the standards of
Appendix 15-B, impairment is evaluated under the scheme found in Table 15-23
(Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.6 In Table
15-23, grade modifiers are described for test findings, history and physical findings. A survey
completed by a given claimant, known by the name QuickDASH, is used to further modify the
grade and to choose the appropriate numerical impairment rating.7 If carpal tunnel syndrome is
not found under the standards of Appendix 15-B, impairment due to median nerve dysfunction is
evaluated under the scheme found in Table 15-21 (Peripheral Nerve Impairment: Upper
Extremity Impairments).8 Under Table 15-21, observed conditions are placed into classes
3

5 U.S.C. §§ 8101-8193.

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
5

Id. at 487, Appendix 15-B.

6

See id. at 449, Table 15-23.

7

Id. at 448.

8

Id. at 437-40, Table 15-21 (portion relating to median nerves).

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(ranging from Class 0 to Class 4) based on diagnosis and the severity of the condition. After the
class is identified, the precise degree of the impairment can be modified by various factors,
including functional history, physical examination and clinical studies.9
Proceedings before the Office are not adversarial in nature and the Office is not a
disinterested arbiter; in a case where the Office “proceeds to develop the evidence and to procure
medical evidence, it must do so in a fair and impartial manner.”10
ANALYSIS
The Office accepted that appellant developed bilateral carpal tunnel syndrome and
ulnar/cubital tunnel syndrome on the right. Appellant requested a schedule award and submitted
a July 2, 2009 report from Dr. Shin reporting mild intermittent alteration of sensation in the right
ulnar nerve distribution, minimal alteration of sensation around the incision in appellant’s right
elbow as well as minimal intermittent numbness and tingling involving right ring and small
fingers. Dr. Shin rated appellant’s impairment at 10 percent without further explanation of how
he reached this rating. He did not attempt to correlate his findings with the A.M.A., Guides.
Dr. Shin did not clearly indicate whether appellant’s carpal tunnel findings were bilateral or
whether one extremity was worse than the other. It is also unclear from his report whether he
believed that appellant had up to 10 percent impairment due to her carpal tunnel syndrome and
an additional 10 percent impairment due to ulnar/cubital tunnel syndrome. Without detailed
findings or any medical reasoning supporting Dr. Shin’s 10 percent impairment ratings, this
report is not sufficient to meet appellant’s burden of proof.
On August 23, 2009 Dr. Ghodadra, reviewed the sixth edition of the A.M.A., Guides. He
found that carpal tunnel syndrome with mild symptoms and normal functional scale leads to a
grade modifier 1 impairment and one percent impairment for each upper extremity based on
Table 15-23 of the A.M.A., Guides.11 Dr. Ghodadra noted that residual compression symptoms
of the right ulnar nerve with mild intermittent symptoms and decreased sensation led to a high
grade modifier 1 impairment and an impairment rating of three percent. He concluded that
appellant had four percent impairment of the right upper extremity and one percent impairment
of the left upper extremity.12
With respect to evaluating impairment related to dysfunction of the median nerves,
Appendix 15-B (Electrodiagnostic Evaluation of Entrapment Syndromes) contains criteria for
evaluating whether carpal tunnel or cubital tunnel syndrome is present. If carpal tunnel or
cubital syndrome is found under the standards of Appendix 15-B, impairment is evaluated under
the scheme found in Table 15-23. If carpal tunnel or cubital tunnel syndrome is not found under
the standards of Appendix 15-B, impairment due to median or ulnar nerve dysfunction is
evaluated under the scheme found in Table 15-21. There is no evidence that either Dr. Shin or
9

Id. at 406-09.

10

Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985).

11

A.M.A., Guides 449, Table 15-23.

12

Id.

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Dr. Ghodadra addressed the content of Appendix 15-B. It is not clear whether the
electrodiagnostic nerve testing of December 10, 2007 was sufficiently complete to allow
evaluation of the existence of carpal tunnel syndrome or cubital tunnel syndrome under
Appendix 15-B. The testing results did not indicate over what distance nerve conduction was
tested or provide findings for distal peak compound nerve latency.13
For these reasons, the case will be remanded for development regarding the extent of
appellant’s impairment.14 After such development as it deems necessary, the Office will issue an
appropriate decision regarding appellant’s entitlement to schedule award compensation.
CONCLUSION
The Board finds that the case is not in posture for decision regarding the extent of
appellant’s permanent impairment to her upper extremities.
ORDER
IT IS HEREBY ORDERED THAT the November 17, 2009 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded to the Office for further
proceedings consistent with this decision of the Board.
Issued: November 22, 2010
Washington, DC

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

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

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

13

Id. at 487, Appendix 15-B.

14

W.W., Docket No. 09-2243 (issued June 24, 2010).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.H., widow of K.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL EMERGENCY MANAGEMENT
AGENCY, Warren, MI, Employer
__________________________________________

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Appearances:
George P. Ferro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1130
Issued: November 19, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 10, 2019 appellant, through counsel filed a timely appeal from October 23 and 24,
2018 merit decisions 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.3

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.

3
The Board notes that following the October 24, 2018 decision, OWCP and the Board 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.

ISSUES
The issues are: (1) whether the employee received an overpayment of compensation in the
amount of $29,591.10 for the period January 12, 2015 through November 12, 2016 because he
concurrently received FECA wage-loss compensation benefits and Social Security Administration
(SSA) age-related retirement benefits without an appropriate offset; (2) whether OWCP properly
found the employee at fault in creation of the $29,591.10 overpayment, thereby precluding waiver
of recovery of the overpayment; (3) whether OWCP properly determined that the employee
received an overpayment of compensation in the amount of $1,446.61, for which he was without
fault, because he concurrently received sick leave pay and FECA wage-loss compensation during
the period December 14 through 30, 2014; (4) whether OWCP properly denied waiver of recovery
of the $1,446.61 overpayment; and (5) whether OWCP properly required recovery of the
$29,591.10 and $1,446.61 overpayments from the employee’s estate.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On December 3, 2014 the employee, then a 75-year-old Federal Emergency Management
Agency (FEMA) public assistance group supervisor, filed a traumatic injury claim (Form CA-1)
alleging that he injured his hip when he tripped on a floor mat and fell, while in the performance
of duty. The employee’s retirement coverage was noted on the form as Federal Employees
Retirement System (FERS). The employee stopped work and did not return. OWCP accepted the
claim for closed fracture of neck of left femur. The record reflects that OWCP paid the employee
FECA wage-loss compensation on the supplemental rolls as of December 14, 20145 and on the
periodic rolls as of June 28, 2015.
In a June 10, 2015 narrative statement, the employee asserted that, to date, he had not
received FECA wage-loss compensation benefits. He reported receiving federal salary net
payments of $2,181.56 on December 19, 2014 and $1,182.33 on January 5, 2015.
On June 6, 2016 the employee submitted an affidavit of earnings and employment
(EN1032 form) in which he answered “No” when asked if he received benefits from the SSA as
part of an annuity for federal service.
By letter dated July 25, 2016, the employee notified OWCP that he retired as a full-time
employee from the employing establishment on February 27, 2004. He then returned as a parttime employee later in 2004 on an as needed temporary basis. The employee reported that he
started drawing his annuity after he retired and began receiving FECA wage-loss benefits after his
November 26, 2014 employment injury. He reported that he could not understand why “they want
to cancel” his FECA wage-loss compensation benefits and that he was never made aware of not
being eligible to collect his regular pension concurrently with FECA benefits.

4

Docket No. 18-0171 (issued August 2, 2018).

5

OWCP paid appellant compensation on the supplemental rolls retroactively on June 29, 2018.

2

On September 30 and October 21, 2016 OWCP forwarded a FERS/SSA dual benefits
calculations worksheet to SSA.
In a November 14, 2016 FERS/SSA dual benefits calculations worksheet, SSA reported
that as of January 2015, the employee’s SSA rate with FERS was $2,248.70 and SSA rate without
FERS was $911.00, and as of December 2016, the employee’s SSA rate with FERS was $2,255.40
and without FERS was $913.70.
In a November 25, 2016 FERS offset calculation worksheet, the employee’s SSA rate with
FERS totaled $2,248.70 and SSA without FERS totaled $911.00 with a January 1, 2015 effective
date. A monthly FERS offset of $1,337.70 and a 28-day FERS offset of $1,234.80 was reported.
The overpayment start date was recorded as January 1, 2015 with an end date of November 12,
2016 for a total of 682 days. The worksheet reflected that the overpayment amount totaled
$30,076.20.
By notice dated November 23, 2016, OWCP issued a preliminary determination that an
overpayment of compensation in the amount of $30,076.20 was created for the period January 1,
2015 through November 12, 2016 as the employee was paid dual compensation under FECA and
SSA without an appropriate offset. It found that the employee was with fault in the creation of the
overpayment because he accepted a payment that he knew or reasonably should have known was
incorrect. The November 14, 2016 FERS/SSA dual benefits calculations worksheet and
November 25, 2016 FERS offset calculation worksheet were provided. OWCP informed the
employee of his options if he wished to contest the fact or amount of overpayment or request a
waiver of recovery and provided him with an overpayment recovery questionnaire (Form
OWCP-20).
On December 18, 2016 the employee, through counsel, requested a prerecoupment hearing
before an OWCP hearing representative. The employee disagreed with the amount of the
overpayment and reported that it occurred through no fault of his own.
A hearing was held on June 16, 2017, where counsel argued that an overpayment occurred
through no fault of the employee and that repayment would cause a financial hardship.
By letter dated July 26, 2017, the employee reiterated that he was never made aware that
he could not collect FECA concurrently with his monthly federal retirement benefits to which he
was entitled after 20 years of federal service.
By decision dated September 21, 2017, an OWCP hearing representative found that an
overpayment of compensation in the amount of $30,076.20 was created for the period January 1,
2015 through November 12, 2016 because the employee was paid dual compensation under FECA
and SSA without an appropriate offset. She overturned the preliminary determination’s finding of
fault, explaining that the employee was without fault in the creation of the overpayment because
it was reasonable that he may not have understood that he was in receipt of dual benefits. The
hearing representative explained that the employee’s letters established that he was unclear
regarding the benefits he was receiving. She further found that the employee failed to submit a
Form OWCP-20 or any supporting financial information and that the overpayment was, therefore,
not subject to waiver. Based on his current 28-day compensation benefit of $1,230.50, the hearing
representative determined that the employee could repay the overpayment by deducting $275.00
every 28 days from his continuing compensation benefits.
3

On October 27, 2017 the employee, through counsel, submitted a completed Form
OWCP-20 dated September 27, 2017, which listed his monthly expenses, assets, and income in
support of waiver of recovery of the overpayment due to financial hardship. Counsel for the
employee noted that his monthly expenses exceeded his income and requested waiver of the
overpayment in light of the recent finding that he was without fault in the creation of the
overpayment. In the alternative, counsel requested a reduction of the monthly recoupment amount
to $50.00 for each compensation period as $275.00 would cause him severe prejudice.
On October 30, 2017 the employee, through counsel, filed a timely appeal to the Board
from OWCP’s September 21, 2017 merit decision.
On June 19, 2018 the employing establishment forwarded a claim for compensation (Form
CA-7) to OWCP claiming disability while in a leave without pay (LWOP) status from
December 14 to 30, 2014.
The record reflects that the employee passed away on July 5, 2018.
On July 12, 2018 the employing establishment forwarded another Form CA-7 to OWCP
claiming disability while in an LWOP status from December 1 to 30, 2014.
By letter dated July 17, 2018, OWCP notified the employee that it had received the CA-7
forms claiming compensation for the period beginning December 1 through 30, 2014. It informed
him that the continuation of pay (COP) period ran from November 27, 2014 through January 10,
2015, which was paid by his employing establishment, and that any wage-loss subsequent to that
date could be covered under compensation if he were disabled for work. By decision dated
August 2, 2018, the Board vacated OWCP’s September 21, 2017 merit decision in part. The Board
found that OWCP had established fact of overpayment, but that OWCP had not established the
amount of the overpayment.6 The Board found that OWCP did not provide a complete payment
history substantiating the employee’s receipt of dual SSA age-related retirement and FECA wageloss compensation benefits during the purported overpayment period January 1, 2015 through
November 12, 2016 as there was evidence of record that appellant received COP benefits through
January 11, 2015.7 The Board found that the record was unclear regarding the amount of
overpayment and remanded the case for further development.
Following the Board’s remand, in a September 12, 2018 Form CA-110 telephone
memorandum, the employing establishment advised OWCP that the employee used sick leave
from November 26, 2014 through January 11, 2015.
In a September 12, 2018 FERS offset calculation worksheet, the employee’s SSA rate with
FERS totaled $2,248.70 and SSA without FERS totaled $911.00 with a January 12, 2015 effective
6

Supra note 4.

The Board noted that OWCP’s June 29, 2015 initial payment memorandum and July 1, 2015 letter indicated that
the record was unclear regarding whether the employee received COP from November 27, 2014 through
January 11, 2015. A June 30, 2015 supplemental rolls payment worksheet reflected that the employee received
disability compensation from January 12 through June 27, 2015. OWCP requested clarification regarding the matter,
but failed to discharge its burden in developing the evidence as the issue remained unresolved. As such, it was unclear
how it determined the overpayment began on January 1, 2015 and OWCP should not have relied on SSA’s unverified
report to determine that the overpayment began on that date.
7

4

date. A monthly FERS offset of $1,337.70 and a 28-day FERS offset of $1,234.80 was reported.
The overpayment start date was recorded as January 12, 2015, with an end date of November 12,
2016, for a total of 671 days. The worksheet reported that the overpayment amount totaled
$29,591.10.
By preliminary determination dated September 13, 2018, OWCP advised the employee’s
estate of an overpayment of compensation in the amount of $29,591.10 because the employee was
paid dual wage-loss compensation benefits under FECA and SSA age-related retirement benefits
without an appropriate offset for the period January 12, 2015 through November 12, 2016. It also
found that the employee had been at fault in the creation of the overpayment because he accepted
a payment that he knew or reasonably should have known was incorrect. OWCP advised the
employee’s estate that it could submit evidence challenging the fact, amount, or finding of fault,
and request waiver of recovery of the overpayment. It also directed the employee’s estate to
complete a Form OWCP-20, and advised it of its appeal rights.
In another notice dated September 18, 2018, OWCP advised the employee’s estate of its
preliminary determination of an overpayment of compensation in the amount of $1,446.61 for the
period December 14 through 30, 2014, because the employee was paid sick leave and FECA wageloss compensation for the same period of time. It found that he was without fault in the creation
of the overpayment because the employee was not aware nor could reasonably have been expected
to know that OWCP had paid compensation incorrectly. OWCP requested that the employee’s
estate complete the enclosed Form OWCP-20 and submit supporting financial documentation.
Additionally, it notified the estate that, within 30 days of the date of the letter, it could request a
telephone conference, a final decision based on the written evidence, or a prerecoupment hearing.
On October 9, 2018 appellant, the employee’s widow, contested the fact that the
overpayments had occurred, the finding of fault, and requested a waiver of recovery of the
overpayments. She denied having knowledge of the alleged overpayment, which occurred almost
four years ago. Appellant again informed OWCP that the employee passed away on July 5, 2018
and if an overpayment existed, it should be waived because she was unable to afford the payments.
She reported that she had no knowledge or information pertaining to any overpayment between
the employee and OWCP and did not understand the situation. Appellant did not complete or
return the Form OWCP-20 or provide financial documentation.
By decision dated October 23, 2018, OWCP issued a final overpayment determination to
the employee’s estate finding a $29,591.10 overpayment of compensation for the period
January 12, 2015 through November 12, 2016, because the employee was paid dual wage-loss
compensation benefits under FECA and SSA age-related retirement benefits without an
appropriate offset.8 It further finalized the finding of fault, thereby precluding waiver of recovery
of the overpayment. OWCP required repayment of the overpayment in full.
In a separate decision dated October 24, 2018, OWCP issued a final overpayment
determination to the employee’s estate, finding a $1,446.61 overpayment of compensation for the
8
OWCP noted that under the current debt number 906325805, an overpayment in the amount of $29,591.10 that
was declared in the case for the period January 12, 2015 through November 12, 2016. It further noted that $2,750.00
was collected under the prior debt number 906297328 due to lack of an SSA/FERS offset. That record was voided
and a new one created following the Board’s August 2, 2018 decision. Therefore the current remaining balance of the
overpayment amounted to $26,841.10.

5

period December 14 through 30, 2014, because the employee was paid leave for the same period
he received FECA wage-loss compensation. It determined that he was without fault in the creation
of the overpayment because the employing establishment erred in sending OWCP the Form CA-7
claiming compensation for lost wages, but denied waiver of recovery of the overpayment of
compensation because the employee’s estate failed to provide any of the financial information
requested. OWCP concluded that there was no evidence to substantiate that recovery of the
overpayment would either defeat the purpose of FECA or be against equity and good conscience.
It required repayment of the overpayment in full.
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 his duty.9 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.10
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
attributable to the employee’s federal service.11 FECA Bulletin No. 97-09 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.12
ANALYSIS -- ISSUE 1
The Board finds that the employee received an overpayment of compensation in the amount
of $29,591.10, because he concurrently received FECA benefits and SSA age-related retirement
benefits for the period January 12, 2015 through November 12, 2016 without an appropriate
offset.13
By decision dated August 2, 2018, the Board remanded the case for OWCP to determine
whether an overpayment of compensation was created in the amount of $30,076.20 for the period
January 1, 2015 through November 12, 2016 as OWCP had failed to provide a complete payment
history substantiating the employee’s receipt of dual SSA age-related retirement and FECA wageloss compensation benefits during the purported overpayment period
In September 2018, OWCP developed a complete payment history substantiating the
employee’s receipt of FECA benefits during the purported overpayment period, from January 12,
9

5 U.S.C. § 8102(a).

10

Id. at § 8116.

11
20 C.F.R. § 10.421(d); see L.W., Docket No. 19-0787 (issued October 23, 2019); S.M., Docket No. 17-1802
(issued August 20, 2018).
12

FECA Bulletin No. 97-09 (February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).

13

T.B., Docket No. 18-1449 (issued March 19, 2019).

6

2015 through November 12, 2016 while also receiving SSA age-related retirement benefits
without an appropriate offset. The record indicates that, while the employee was receiving
compensation for total disability under FECA, he was also receiving SSA age-related retirement
benefits. A claimant cannot receive both compensation for wage-loss under FECA and SSA agerelated retirement benefits attributable to federal service for the same period.14 As the employee
received SSA age-related retirement benefits that were attributable to federal service during the
period January 12, 2015 through November 12, 2016, the fact of overpayment has been
established.15
To determine the amount of the overpayment, OWCP must calculate the portion of the
SSA benefits that were attributable to federal service. It received documentation from SSA
providing appellant’s SSA rate with FERS, and without FERS for the period January 12, 2015
through November 12, 2016. OWCP provided its calculations for each relevant period based on
the SSA worksheet. No contrary evidence was provided. The Board has reviewed OWCP’s
calculation of benefits received by the employee for the period January 12, 2015 through
November 12, 2016 and finds that an overpayment of compensation in the amount of $29,591.10
was created.16
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA17 provides that an overpayment of 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.
To determine if an individual was at fault with respect to the creation of an overpayment,
OWCP examines the circumstances surrounding the overpayment. The degree of care expected
may vary with the complexity of those circumstances and the individual’s capacity to realize that
he or she is being overpaid.18
When a claimant receives benefits from SSA as part of an annuity under FERS
concurrently with disability/wage-loss compensation, the claimant should be found without fault

14

See E.K., Docket No. 18-0587 (issued October 1, 2018).

15

L.M., Docket No. 19-1197 (issued January 8, 2020).

16

See D.C., Docket No. 17-0559 (issued June 21, 2018).

17

5 U.S.C. § 8129(b).

18

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Determinations in an Overpayment,
Chapter 6.300.4(d) (September 2018).

7

unless there is evidence on file that the claimant was aware that the receipt of full SSA benefits
concurrent with disability/wage-loss compensation was prohibited.19
ANALYSIS -- ISSUE 2
The Board finds that OWCP improperly found the employee at fault in the creation of the
overpayment for the period January 12, 2015 through November 12, 2016.
In the prior September 21, 2017 decision, OWCP’s hearing representative overturned the
preliminary determination’s finding of fault in the overpayment claim, explaining that it was
reasonable that the employee may not have understood that he was in receipt of dual benefits. The
hearing representative correctly determined that the employee was not at fault in the creation of
the overpayment because the evidence failed to establish that he knowingly accepted a payment
which he knew to be incorrect.20 The September 21, 2017 decision further discussed and addressed
the relevant evidence provided by the employee, including various letters he submitted, which
established that he was unclear regarding the benefits he was receiving and attempted to correct
the situation by advising OWCP that he wanted to elect FECA benefits if he was required to do
so.
The September 13, 2018 preliminary notice and the October 23, 2018 final overpayment
decision, however, failed to consider this evidence, OWCP’s hearing representative’s prior
finding, and its own procedures when issuing its determination that the employee was at fault in
the creation of the overpayment for the period January 12, 2015 through November 12, 2016.21
The Board finds that the employee was without fault in the creation of the overpayment.
As the employee was not at fault in the creation of the overpayment for the period
January 1, 2015 through November 12, 2016, the case will be remanded to OWCP to consider the
issue of waiver of recovery of the overpayment.
LEGAL PRECEDENT -- ISSUE 3
Section 8102(a) 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 his
or her federal employment.22 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.23

19

See J.B., Docket No. 19-1244; G.G., Docket No. 19-0684 (issued December 24, 2019) (The Board affirmed
OWCP’s finding that, due to the complexity of SSA age-related retirement benefits administration, appellant was not
with fault in the creation of the overpayment because he could not have reasonably known that an improper payment
had occurred. OWCP determined that appellant was not expected to be able to calculate the amount of the offset prior
to receipt of information for the SSA).
20

Id.

21

K.B., Docket No. 19-1332 (issued July 17, 2020).

22

5 U.S.C. § 8102(a).

23

Id. at § 8116.

8

Section 8118(c) provides that compensation for disability does not begin until termination
of COP or the use of annual or sick leave ends.24
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly determined that the employee received an
overpayment of compensation in the amount of $1,446.61 because he received both wage-loss
compensation and paid sick leave for the period December 14 through 30, 2014.
The record indicates that on June 19, 2018 the employing establishment sent OWCP a
Form CA-7 indicating LWOP for the period December 14 through 30, 2014. In a Form CA-110
telephone memorandum dated September 12, 2018, the employing establishment notified OWCP
that the employee used sick leave from November 26, 2014 through January 11, 2015.25
On June 21, 2018 OWCP paid the employee wage-loss compensation for a portion of the
period December 14 through 30, 2014, when he had previously used sick leave for the same period.
As noted, compensation for wage loss is not payable for periods when a claimant has used sick or
annual leave.26 Since the employee received $1,446.61 in compensation for a period when sick or
annual leave was used, the Board will affirm the fact and amount of the overpayment.27
LEGAL PRECEDENT -- ISSUE 4
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience.28
Recovery of an overpayment will defeat the purpose of FECA when such recovery would
cause hardship to a currently or formerly entitled beneficiary because the beneficiary from whom
OWCP seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP.29 Additionally recovery of an
overpayment is considered to be against equity and good conscience when an individual who
24

Id. at § 8118(c).

25
The Board also notes that the evidence of record indicates that the employee’s COP period ran from
November 27, 2014 through January 11, 2015. The record in unclear as to whether appellant’s sick leave was
converted to COP. Nevertheless, receipt of wage-loss benefits from OWCP during the COP period also creates an
overpayment of compensation. D.G., Docket No. 16-0281 (issued April 21, 2016).
26
S.T., Docket No. 19-0318 (issued November 12, 2019); see also D.E., Docket No. 10-0458 (issued
November 9, 2010).
27

Id.

28

5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see A.S., Docket No. 17-0606 (issued
December 21, 2017).
29
20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4(a)(2) (September 2018).

9

received an overpayment would experience severe financial hardship in attempting to repay the
debt or when an individual, in reliance on such payment or on notice that such payments would be
made, gives up a valuable right or changes his or her position for the worse.30
OWCP regulations provide that the individual who received the overpayment is responsible
for providing information about income, expenses, and assets as specified by OWCP. This
information is needed to determine whether or not recovery of an overpayment would defeat the
purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary.31 Failure to submit the requested information
within 30 days of the request shall result in a denial of waiver of recovery, and no further request
for waiver shall be considered until the requested information is furnished.32
ANALYSIS -- ISSUE 5
The Board finds that this case is not in posture for decision as to whether recovery of the
overpayment should be waived.
In the case of William A. Couch,33 the Board held that, when adjudicating a claim, OWCP
is obligated to consider all evidence properly submitted by a claimant and received by OWCP
before the final decision is issued.
In its October 24, 2018 decision, OWCP denied waiver of recovery finding that appellant
failed to submit a Form OWCP-20 or supporting financial documentation. The record reflects that
an overpayment action request submitted on October 9, 2018 by appellant contested the fact that
the overpayment occurred, the finding of fault, and requested waiver of recovery. While appellant
did not complete or return the Form OWCP-20 or provide financial documentation, the record
reflects that prior to his death, the employee had previously submitted this information in support
of waiver of recovery of the overpayment. Notably, the employee submitted a completed Form
OWCP-20 on October 27, 2017 documenting his income, expenses, and assets as specified by
OWCP. In an accompanying letter, counsel for the employee asserted that his monthly expenses
exceeded his income and requested waiver of the overpayment in light of the recent finding that
he was without fault in the creation of the overpayment and the financial hardship it would cause
him. OWCP failed to review the information submitted by the employee in support of his request
for waiver of recovery of the overpayment, therefore, failing to follow its procedures by properly
discussing all of the relevant evidence of record received prior to issuing the final overpayment
decision on October 24, 2018.34
On remand OWCP shall review all evidence of record and, following any further
development as it deems necessary, it shall issue a de novo decision.

30

Id. at § 10.437(a)(b).

31

Id. at § 10.438(a).

32

Id. at § 10.438(b).

33

41 ECAB 548 (1990); see also R.D., Docket No. 17-1818 (issued April 3, 2018).

34

M.R., Docket No. 19-1626 (issued August 19, 2020).

10

LEGAL PRECEDENT -- ISSUE 5
If OWCP finds that an overpayment exists and the employee has recently passed away
OWCP’s procedures require that steps be taken to offset the overpayment prior to recovery from
the estate.35 These procedures provide as follows:
“Upon learning that a claimant with an existing overpayment has died, the District
Office shall immediately contact the OPM [Office of Personnel Management] to
determine the availability of any OPM benefits payable at the time of death that
may be administratively offset, e.g., basic employee death benefits, survivor
annuity benefits, or lump[-]sum refund of the deceased employee’s retirement
contributions (5 C.F.R. § 831.1805).36
“If the claimant recently passed away, OWCP may refer the debt to FMS [Financial
Management System] for offset of the deceased claimant’s last Federal tax refund
under the Treasury’s Offset Program (TOP). 31 C.F.R. § 285.2. The OWCP has a
special profile with FMS under TOP for the collection of these specific estate
debts.”37
ANALYSIS -- ISSUE 5
The Board finds that this case is not in posture for decision with regard to recovery of the
overpayment debt. The evidence of record does not substantiate the actions OWCP has taken to
recover the overpayment of debt before requiring payment in full from the employee’s estate.38
OWCP was required to follow certain procedures to protect appellant in overpayment cases
wherein it has knowledge that a beneficiary with an existing overpayment has died.39 In this case,
the evidence of record does not substantiate the actions OWCP has taken to recover the
overpayment debt through an offset from OPM benefits or through the TOP, prior to taking
overpayment actions against the estate. The case shall therefore be remanded for OWCP to follow
its procedures as outlined in Chapter 6.500.15 of its procedures.40 Following this and any other
further development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that the employee received an overpayment of compensation in the amount
of $29,591.10, because he concurrently received FECA benefits and SSA age-related retirement
35
J.P., Docket No. 18-1194 (issued April 28, 2020); see Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Recovery of an Existing Debt from a Deceased Debtor’s Estate, Chapter 6.500.15(e-f)
(September 2018).
36

Id. at Chapter 6.500.15(f).

37

Id. at Chapter 6.500.15(e).

38

W.J., Docket No. 18-1035 (issued July 9, 2019).

39

Supra note 36.

40

Id.; see also S.B., Docket No. 18-1420 (issued June 20, 2019).

11

benefits for the period January 12, 2015 through November 12, 2016 without an appropriate offset.
The Board further finds that OWCP improperly found the employee at fault in the creation of the
overpayment for the period January 12, 2015 through November 12, 2016. The Board also finds
that OWCP properly determined that the employee received an overpayment of compensation in
the amount of $1,446.61 for which he was without fault because he concurrently received wageloss compensation and paid sick leave for the period December 14 through 30, 2014. The Board
further finds that this case is not in posture for decision regarding the issue of waiver of recovery
of the $1,446.61 overpayment. The Board also finds that the case is not in posture for decision
regarding recovery of the overpayments against the estate.
ORDER
IT IS HEREBY ORDERED THAT the October 24 and 23, 2018 decisions of the Office
of Workers’ Compensation Programs are affirmed in part, and set aside in part, and the case is
remanded for further action consistent with this decision of the Board.
Issued: November 19, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

12


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

)
)
)
)
)
)
)
)

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

Docket No. 09-1072
Issued: January 11, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 16, 2009 appellant filed a timely appeal of the January 5, 2009 merit decision
of the Office of Workers’ Compensation Programs affirming the termination of his compensation
benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of this case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation and medical benefits effective September 30, 2007; and (2) whether appellant has
met his burden of proof to establish any continuing disability or residuals after
September 30, 2007.
FACTUAL HISTORY
On April 5, 2006 appellant, then a 42-year-old mail processor, filed a traumatic injury
claim alleging that he injured his back pulling containers in the performance of duty. The Office
accepted his claim for lumbar strain on June 29, 2006.

Appellant underwent a magnetic resonance imaging (MRI) scan on June 6, 2006 which
was unremarkable. Dr. Alejandro Alam, an attending physician specializing in preventative
medicine, noted on May 5, 2006 that appellant’s lumbar strain was not resolving with physical
therapy and limited duty. In a note dated June 8, 2006, Dr. Matthew Richardson, a physician
specializing in preventative medicine, diagnosed lumbosacral strain and bilateral lower extremity
dysesthesias.
On October 18, 2006 the Office referred appellant for a second opinion evaluation to
Dr. Christopher Cenac, a Board-certified orthopedic surgeon. In a report dated November 6,
2006, Dr. Cenac reviewed appellant’s history of injury and found no sensory deficits in either
lower extremity. He found that appellant had normal range of motion with no muscle spasm or
atrophy in the back. Dr. Cenac stated that appellant’s lumbar x-rays were normal. He concluded
that appellant had no objective evidence of any orthopedic mechanical dysfunction or
neurological deficit causally related to the April 5, 2006 employment injury. Dr. Cenac stated
that appellant could return to normal physical activities and that he had reached maximum
medical improvement. He completed a work restriction evaluation and found that appellant
could return to his date-of-injury position with no restrictions.
The Office entered appellant on the periodic rolls on December 22, 2006. It authorized
his request to change treating physicians to Dr. Morteza Shamsnia, a Board-certified neurologist
of professorial rank, and requested that Dr. Shamsnia respond to Dr. Cenac’s findings.
On January 24, 2007 Dr. Shamsnia reported that appellant had normal muscle tone and
strength in all extremities. He found no atrophy or tremors. Dr. Shamsnia advised that appellant
had a normal sensory examination and reflexes. He noted spasm in the cervical and lumbosacral
spine. Dr. Shamsnia diagnosed neck pain, low back pain and pain and paresthesias of the limbs.
He recommended an MRI scan as well as electrodiagnostic testing. Appellant underwent a
standing MRI scan on February 28, 2007 which demonstrated desiccation and decreased height
of the L4-5 disc with posterior bulging. He also demonstrated Grade 1 anterolisthesis of L4 on
L5 with the erect weight-bearing passive, neutral and flexion postures. On March 10, 2007
appellant underwent an electromyelogram which demonstrated left S1 radiculopathy. In a note
dated April 3, 2007, Dr. Shamsnia stated that appellant’s testing revealed a right lumbosacral
radiculopathy and left S1 radiculopathy with a bulging disc at L4-5 and involvement of the L4
nerve root. He recommended additional treatment.
The Office found a conflict in medical opinion between Dr. Shamsnia, for appellant, and
Dr. Cenac, the second opinion physician.
The Office referred appellant for an impartial medical examination on June 12, 2007 with
Dr. Gordon Nutik, a Board-certified orthopedic surgeon, to determine whether he continued to
experience disability and residuals of his accepted employment injury. In a report dated June 27,
2007, Dr. Nutik described appellant’s employment injury. He performed a physical examination
and found pain with palpation at L4-5 as well as the paravertebral and gluteal muscles.
Dr. Nutik found no muscle spasm, limited lateral bending and rotational movements and pain on
straight leg raising. Appellant’s neurological examination was normal and he demonstrated
equal muscle power in the lower extremities with no atrophy. Dr. Nutik noted that appellant
complained of pain during the examination at his left hip. He found that appellant’s lumbosacral

2

x-rays did not demonstrate fractures. Dr. Nutik opined that appellant sustained a low back strain
which resolved within three or four months. He requested to review the actual MRI scan films.
Dr. Nutik noted that appellant’s electromyogram (EMG) demonstrated left S1 radiculopathy, but
stated that there was not clinical correlation to indicated left S1 nerve root involvement and
recommended a repeat EMG. He stated that his clinical examination did not reveal any objective
findings to indicate disability in the low back or left hip. Dr. Nutik advised that appellant
demonstrated inconsistencies during the clinical examination as appellant’s significant pain,
sensory deficits and motor impairments were not documented by objective clinical findings. He
opined that appellant’s subjective complaints were not related to his April 5, 2006 employment
injury.
In a supplemental report dated July 16, 2007, Dr. Nutik reviewed appellant’s MRI scan
films and found very minimal anterior listhesis of L4 and L5 in the forward flexion view. He
noted a minimal bulge at L4-5 slightly more prominent towards the right. Dr. Nutik found no
evidence for any root involvement. He opined that appellant’s MRI scan was within normal
limits with no evidence of disc herniations.
On August 1, 2007 Dr. Nutik responded to a request for a supplemental report. He
opined that appellant had sustained a lumbar strain which resolved. He advised that appellant
was capable of returning to his normal work. Dr. Nutik opined that additional treatment was not
necessary and that there were no objective clinical findings to indicate disability.
The Office proposed to terminate appellant’s compensation and medical benefits by letter
dated August 13, 2007.
On August 29, 2007 appellant disagreed with the Office’s proposed termination. He
noted that the Office’s physician and the impartial medical examiner were both orthopedic
surgeons rather than neurologists. Appellant contended that he was partially disabled and unable
to return to his date-of-injury position. In a note dated July 3, 2007, Dr. Shamsnia continued to
support appellant’s disability for work due to low back pain and bulging disc at L4-5.
By decision dated September 27, 2007, the Office terminated appellant’s wage-loss and
medical benefits effective September 30, 2007.
On August 29, 2007 Dr. Shamsnia stated that appellant’s symptoms were unchanged but
that he could return to sedentary work. He again opined that appellant had an abnormal MRI
scan with minimal bulging at L4-5 and abnormal disc intensity at S1. On September 26, 2007
Dr. Shamsnia stated that appellant’s findings and disability were unchanged. In a note dated
October 17, 2007, he stated that appellant could return to work with limitations. On
December 10, 2007 Dr. Shamsnia stated that appellant was performing light-duty work in an
office without difficulty.
On September 10, 2008 Dr. Shamsnia reiterated that appellant was performing light-duty
work but continued to experience low back discomfort. He completed narrative reports on
May 16 and October 2, 2008 and noted appellant’s medical treatment. Dr. Shamsnia stated that
appellant had a history of a work injury with bulging disc at L4-5 and spasm demonstrated by
MRI scan as well as radiculopathy demonstrated by EMG. He noted that appellant could

3

perform light-duty work and opined that appellant’s current symptoms and findings were due to
his April 5, 2006 employment injury.
Appellant requested reconsideration on September 20, 2008. He submitted a brief from
his attorney on October 28, 2008.
Dr. Shamsnia completed a treatment note on
December 3, 2008. He stated that appellant’s neurologic status was unchanged, that he
continued to experience low back pain and that he was taking pain medication.
By decision dated January 5, 2009, the Office denied modification of the September 27,
2007 decisions.
LEGAL PRECEDENT -- ISSUE 1
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.1 It may not terminate compensation without establishing
that disability ceased or that it was no longer related to the employment.2 The Office’s burden of
proof in termination compensation includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.3 The right to medical
benefits for an accepted condition is not limited to the period of entitlement of disability. To
terminate authorization for medical treatment, the Office must establish that a claimant no longer
has residuals of an employment-related condition, which require further medical treatment.4
The Federal Employees’ Compensation Act provides that, if there is a disagreement
between the physician making the examination for the United States and the physician of the
employee, the Secretary shall appoint a third physician who shall make an examination.5 The
implementing regulations state that, if a conflict exists between the medical opinion of the
employee’s physician and the medical opinion of either a second opinion physician of an Office
medical adviser or consultant, the Office shall appoint a third physician to make an examination.
This is called a referee examination and the Office will select a physician who is qualified in the
appropriate specialty and who has had no prior connection with the case.6 It is well established
that, when a case is referred to an impartial medical specialist for the purpose of resolving a
conflict, the opinion of such specialist, if sufficiently well rationalized and based on proper
factual and medical background must be given special weight.7

1

Jorge E. Stotmayor, 52 ECAB 105, 106 (2000).

2

Mary A. Lowe, 52 ECAB 223, 224 (2001).

3

Gewin C. Hawkins, 52 ECAB 242, 243 (2001).

4

Mary A. Lowe, supra note 3.

5

5 U.S.C. §§ 8101-8193, 8123.

6

20 C.F.R. § 10.321.

7

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

4

ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for a low back strain and entered him on the
periodic rolls. Appellant’s attending physicians, Drs. Alum and Richardson, physicians
specializing in preventative medicine and Dr. Shamsnia, a Board-certified neurologist of
professorial rank, supported his claim for total disability and need for medical treatment due to
this condition. The Office referred appellant to Dr. Cenac, a Board-certified orthopedic surgeon,
for a second opinion evaluation. In a November 6, 2006 report, Dr. Cenac found that appellant
had no objective evidence of orthopedic mechanical dysfunction or neurological deficits causally
related to the April 5, 2006 employment injury. He opined that appellant could return to his
date-of-injury position with no restrictions. Due to the disagreement between appellant’s
physicians and the Office referral physician regarding the nature and extent of appellant’s
ongoing physical condition and disability, the Office properly referred appellant to Dr. Nutik, a
Board-certified orthopedic surgeon, for an impartial medical evaluation.
In reports dated June 27, July 16 and August 1, 2007, Dr. Nutik provided an accurate
history of injury and detailed findings on physical examination. He reviewed appellant’s
diagnostic studies and noted that the EMG demonstrated left S1 radiculopathy, but there was no
clinical correlation to indicate left S1 nerve root involvement. Dr. Nutik recommended a repeat
EMG. He reviewed appellant’s MRI scan films and found very minimal anterior listhesis of L4
and L5 in the forward flexion view as well as a minimal bulge at L4-5 slightly more prominent
towards the right. Dr. Nutik found no evidence for any root involvement. He opined that
appellant’s MRI scan was within normal limits with no evidence of disc herniations. Dr. Nutik
stated that his clinical examination did not reveal any objective findings to indicate disability in
the low back or left hip. He noted that appellant demonstrated inconsistencies during the clinical
examination based on significant complaints of pain, sensory deficits and motor impairments not
documented by the clinical findings. Dr. Nutik opined that appellant’s subjective complaints
were not related to his April 5, 2006 employment injury. He opined that appellant had sustained
a low back strain which should have resolved within three or four months following the date of
injury. Dr. Nutik stated that appellant should be capable of returning to his normal work. He
opined that additional treatment was not necessary and that there were no objective clinical
findings to indicate disability.
It is well established that, when a case is referred to an impartial medical specialist for the
purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and
based on proper factual and medical background must be given special weight.8 The Board finds
that Dr. Nutik’s report is entitled to special weight and is sufficiently well reasoned and detailed
to resolve the conflict of medical opinion evidence. Dr. Nutik provided extensive findings on
physical examination, reviewed the MRI scan and EMG and explained why he felt that
appellant’s current symptoms were not related to his accepted employment injury of lumbar
strain.
Appellant submitted additional treatment notes from Dr. Shamsnia in response to the
Office’s proposal to terminate his compensation benefits. On July 3, 2007 Dr. Shamsnia
8

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

5

continued to support appellant’s disability for work due to low back pain and bulging disc at
L4-5. This note did not provide detailed physical findings or medical reasoning in support of the
conclusions offered. Moreover, as Dr. Shamsnia was on one side of the conflict that Dr. Nutik
resolved, the additional report from Dr. Shamsnia is insufficient to overcome the weight
accorded Dr. Nutik as the impartial medical examiner or to create a new conflict.9
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation and medical benefits effective September 30, 1997.
LEGAL PRECEDENT -- ISSUE 2
Once the Office has met its burden of proof in terminating compensation benefits, the
burden of proof shifts to appellant to establish that she remains entitled to compensation benefits
after the date of termination. 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 support such a causal relationship.10
ANALYSIS -- ISSUE 2
Following the Office’s September 27, 2007 decision terminating his compensation
benefits effective September 30, 2007, appellant requested reconsideration on
September 20, 2008. Appellant submitted a series of notes from Dr. Shamsnia dated August 29,
2007 to December 3, 2008. Dr. Shamsnia opined that appellant had an abnormal MRI scan with
minimal bulging at L4-5 and abnormal disc intensity at S1. He stated that appellant’s symptoms
were unchanged and that he could return to sedentary work. These notes do not contain any
narrative history of injury, detailed physical findings or medical reasoning to establish any
continuing disability or medical residuals as a result of appellant’s accepted employment injury.
Dr. Shamsnia also completed narrative reports on May 16 and October 2, 2008 and
reported that appellant had a history of a work injury with bulging disc at L4-5 and spasm
demonstrated by MRI scan as well as radiculopathy demonstrated by EMG. He noted that
appellant could perform light-duty work and opined that appellant’s current symptoms and
findings were due to his April 5, 2006 employment injury. While these reports do relate
appellant’s history and offer an opinion that appellant’s current condition is due to his accepted
employment injury, Dr. Shamsnia did not offer any medical reasoning explaining why he
believed that appellant’s ongoing symptoms and disability were due to his accepted employment
injury of low back strain. Without medical rationale, these reports are not sufficient to meet
appellant’s burden of proof and the Office properly denied his claim.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits effective September 30, 2007. The Board further finds that appellant
9

Jaja K. Asaramo, 55 ECAB 200, 205 (2004).

10

Manuel Gill, 52 ECAB 282, 287 (2001).

6

failed to submit the necessary medical opinion evidence to meet his burden of proof in
establishing that he had any continuing disability or medical residuals on or after
September 30, 2007.
ORDER
IT IS HEREBY ORDERED THAT the January 5, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 11, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 12-595
Issued: July 25, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 24, 2012 appellant filed a timely appeal from a September 27, 2011 schedule
award 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 schedule award decision.
ISSUE
The issue is whether appellant met her burden of proof to establish more than 21 percent
impairment of the left lower extremity for which she received a schedule award.
On appeal appellant asserts that she is entitled to a schedule award for the accepted
bilateral plantar fasciitis condition.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On September 20, 2002 OWCP accepted that appellant, then a 38-year-old distribution
clerk, sustained employment-related bilateral plantar fasciitis. It also accepted mild degenerative
osteoarthritis and localized primary osteoarthritis of the left knee. On June 23, 2003 appellant
underwent shock wave therapy to the right heel. She returned to work on July 15, 2003. By
decision dated June 17, 2005, OWCP accepted that appellant sustained a recurrence of disability
on June 9, 2004.2 Appellant received appropriate compensation and returned to modified fulltime duty on June 6, 2006.
On January 29, 2008 Dr. David A. Lewis, a Board-certified orthopedic surgeon,
performed a total left knee arthroplasty and appellant was placed on the periodic compensation
rolls. In a preoperative physical examination, Dr. R. Steven Pulverman, an attending osteopath,
advised that, except for the left knee, the extremities were without pain. He went on to note that
she had pain in both ankles and feet “and this knee is a compensatory degenerative area
secondary to this other problem.” Appellant returned to modified duty on April 10, 2008. In a
May 6, 2009 report, Dr. Lewis noted appellant’s report that her left knee was doing well and that
she had tolerable pain in the right knee. He diagnosed status post left total knee arthroplasty and
degenerative joint disease of the right knee and advised that she could continue activities as
tolerated.
On April 22, 2011 appellant filed a schedule award claim and submitted a March 8, 2011
report in which Dr. Lewis provided physical examination findings and diagnosed status post left
total knee replacement and degenerative joint disease of the right knee. Dr. Lewis advised that
under the fifth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (hereinafter A.M.A., Guides),3 there was no impairment due to limb
length discrepancy, anklylosis, amputation, peripheral nerve injury, vascular causalgia, range of
motion deficit, gait derangement or strength deficit. He concluded that in accordance with Table
17-35, appellant had 15 percent whole person impairment due to her left knee impairment, based
on a good result from her knee replacement.
By letter dated May 17, 2011, OWCP informed appellant that, effective May 1, 2009, the
sixth edition on the A.M.A., Guides was used to evaluate impairment and asked that she provide
a medical report based on the sixth edition.4 No response was received. On July 21, 2011
OWCP asked its medical adviser to review the record, including Dr. Lewis’ March 8, 2011
report and provide an impairment evaluation in accordance with the sixth edition of the A.M.A.,
Guides.
In an August 3, 2011 report, Dr. Christopher R. Brigham, Board-certified in family and
occupational medicine and an OWCP medical adviser, reviewed the record including Dr. Lewis’
March 8, 2011 report. He advised that maximum medical improvement was reached on
2

OWCP had initially denied the recurrence claim in a December 29, 2004 decision.

3

A.M.A., Guides (5th ed. 2001).

4

Id. (6th ed. 2008).

2

March 8, 2011 and that in accordance with Table 16-3, Knee Regional Grid, of the sixth edition
of the A.M.A., Guides, appellant had a class 2 impairment because she had a good result of her
left total knee replacement with no motion loss or instability. Dr. Brigham found a default grade
of 25 percent with a zero modifier for functional history because appellant had no gait
abnormality, a zero modifier for physical examination because examination was unremarkable,
and no modifier for clinical studies because there were no applicable studies. He applied the net
adjustment formula and concluded that appellant had a 21 percent left lower extremity
impairment due to the total knee replacement. With regard to the accepted bilateral plantar
fasciitis, Dr. Brigham advised that, under Table 16-2, Foot and Ankle Regional Grid, appellant
had no impairment due to plantar fasciitis because there were no significant objective findings on
examination or radiographic studies at maximum medical improvement. He advised that
Dr. Lewis did not report that appellant had complaints regarding her feet. Dr. Brigham
concluded that appellant had a 21 percent impairment of the left lower extremity and no
impairment on the right.
By decision dated September 27, 2011, appellant was granted a schedule award for a 21
percent impairment of the left lower extremity and 0 percent impairment on the right, for a total
of 60.48 weeks, to run from March 8, 2011 to May 4, 2012.
LEGAL PRECEDENT
The schedule award provision of FECA,5 and its implementing federal regulations,6 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 for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.7 For decisions issued
after February 1, 2001, the fifth edition of the A.M.A., Guides was used to calculate schedule
awards.8 For decisions issued after May 1, 2009, the sixth edition will be used.9
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).10 Under the sixth edition, for lower extremity impairments the evaluator
identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by
grade modifiers based on Functional History (GMFH), Physical Examination (GMPE) and

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

9

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

10

A.M.A., Guides, supra note 4 at 3, section 1.3, “The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.”

3

Clinical Studies (GMCS).11 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) +
(GMCS-CDX).12 Under Chapter 2.3, evaluators are directed to provide reasons for their
impairment rating choices, including choices of diagnoses from regional grids and calculations
of modifier scores.13
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with OWCP’s medical adviser
providing rationale for the percentage of impairment specified.14
ANALYSIS
The Board finds that appellant did not establish that she has greater than 21 percent left
lower extremity impairment.
In his March 8, 2011 report, Dr. Lewis provided an impairment rating for appellant’s left
lower extremity in accordance with the fifth edition of the A.M.A., Guides. As noted above, for
decisions issued after May 1, 2009, the sixth edition will be used.15 On May 17, 2011 OWCP
informed appellant of this requirement and asked that she inform her physician to provide an
appropriate report. Appellant did not respond. OWCP then appropriately forwarded Dr. Lewis’
report to an OWCP medical adviser for review.
The sixth edition classifies the lower extremity impairment by diagnosis, which is then
adjusted by grade modifiers.16 In his August 3, 2011 report, Dr. Brigham applied the appropriate
tables and grading schemes to the A.M.A., Guides. He indicated that he had utilized Table 16-3,
Knee Regional Grid, of the sixth edition of the A.M.A., Guides and identified a total knee
replacement as a diagnosis. Dr. Brigham advised that appellant had a class 2 impairment based
on a good result of the total knee replacement. He identified modifiers of one for functional
history and physical examination and found no modifier for clinical studies. Dr. Brigham
calculated an adjustment of -4 using the net adjustment formula which, yielded a 21 percent
permanent disability of each lower extremity.17 The record does not contain an additional
medical report that rates appellant’s left lower extremity in accordance with the sixth edition of
the A.M.A., Guides.

11

Id. at 494-531.

12

Id. at 521.

13

Id. at 23-28.

14

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
15

Supra note 9.

16

Supra note 4 at 497-500.

17

Id. at 521.

4

As to appellant’s argument on appeal that she is entitled to a schedule award for the
accepted bilateral plantar fasciitis condition, there is no medical evidence of record addressing
whether she has a permanent impairment due to this condition.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has a 21 percent left lower extremity impairment for
which she received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the September 27, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 25, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5