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

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Appearances:
Don Grafie, for the appellant
Office of Solicitor, for the Director

Docket No. 07-992
Issued: September 12, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 1, 2007 appellant filed a timely appeal from a January 12, 2007 merit decision
of the Office of Workers’ Compensation Programs denying her emotional condition claim.
Under 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty.
FACTUAL HISTORY
On October 29, 2006 appellant, then a 48-year-old sales and service associate, filed an
occupational disease claim alleging that she developed stress due to harassment by her

supervisors. She became aware of her condition and realized that it was caused or aggravated by
her work on October 9, 2006. Appellant stopped work on October 10, 2006.
In an October 23, 2006 statement, appellant advised that she had signed up to volunteer
work on the October 9, 2006 holiday on October 3, 2006. Kristi O’Donnell, the officer in
charge, had given her the truck schedule and instruction. Appellant stated that, when she showed
up to work on October 9, 2006, Ms. O’Donnell yelled at her to get out of the building as she was
not on the schedule. She stated that Ms. O’Donnell called the police to remove her from the
premises. Appellant called the union president, who had advised her to leave and that she would
still get paid for the holiday even though she was not working it. Before she left, she and a
police officer went to Ms. O’Donnell’s office to ask for a copy of the volunteer to work form.
Appellant alleged that Ms. O’Donnell told her to pick it up the next day and then slammed the
door in her face.
In an October 9, 2006 police report, Officer P. Burns indicated that Ms. O’Donnell had
called to have appellant removed from the premises as she was not supposed to be at work. She
indicated that Ms. O’Donnell had shown her a schedule which indicated that appellant had the
day off. Officer Burns also noted appellant’s versions of events. She indicated that, when
appellant and she went to Ms. O’Donnell’s office to obtain a copy of the volunteer to work form,
Ms. O’Donnell stated that it was somewhere in her office and that appellant could pick it up the
next day. Officer Burns stated that Ms. O’Donnell then slammed the door in their faces. She
stated that Ms. O’Donnell was extremely rude, unprofessional and very demanding. Officer
Burns noted that appellant had three grievances filed against Ms. O’Donnell.
Appellant submitted leave documents. In an October 10, 2006 prescription note,
Dr. Henry W. Kong, a Board-certified internist, indicated that appellant was disabled from
October 10 to 28, 2006 due to stress and anxiety. In an October 10, 2006 chart note, he
diagnosed anxiety and panic attack after a confrontation at work. In October 19 and 23, 2006
notes, Dr. Kong advised that appellant was suffering from chronic headaches and stomachaches
likely related to chronic stress and anxiety which started on October 10, 2006. He indicated that
appellant would be unable to work for approximately one month.
On November 17, 2006 the Office asked appellant to submit additional factual and
medical information, including a detailed description of the employment factors or incidents she
believed contributed to her claimed illness. The Office also requested that the employing
establishment comment on appellant’s claim.
Appellant submitted a December 5, 2006 chronology of events. She alleged that, after
she filed three grievances against Ms. O’Donnell on September 28, 2006, Ms. O’Donnell no
longer spoke to her. Appellant alleged that Ms. O’Donnell retaliated and harassed her causing a

2

hostile workplace.1 On September 30, 2006 she stated that she called Ms. O’Donnell and
requested overtime to do the mail. Appellant indicated that Ms. O’Donnell asked to speak to her
coworker, Scott, and alleged that Scott told her that Ms. O’Donnell did not want to give her
overtime. She reiterated that she had signed up to work the October 9, 2006 holiday. Appellant
alleged that Ms. O’Donnell changed the date of the holiday schedule from October 7 to 9, 2006.
She also alleged that the October 9, 2006 police report showed that Ms. O’Donnell was
unprofessional and extremely rude and very demanding when she asked for a copy of the signed
volunteer work on holiday form. Appellant worked two hours overtime on Saturday
October 7, 2006. She alleged that her coworker, Scott, told her on October 10, 2006 that
Ms. O’Donnell did not want to pay her for the October 7, 2006 overtime. Appellant advised that
Ms. O’Donnell changed the schedule on October 3, 2006 after she had already offered her
overtime on October 7, 2006. She went to the doctor on October 10, 2006 due to extreme stress
and anxiety. Appellant indicated that the employing establishment agreed to pay for the
violations which occurred and that Ms. O’Donnell was removed from her duties on
November 20, 2006. Copies of three Step 2 settlement agreements were provided. An
October 30, 2006 settlement indicated that the October 20, 2006 letter of demand given to
appellant was satisfied in full and no repayment of a salary advance would be required. Two
settlements dated November 2, 2006 indicated that appellant would receive payments of $75.00
and $80.00.
In letters dated December 19 and 28, 2006, Nancy A. Hofstetter, manager of customer
services, responded to appellant’s allegations. She stated that Ms. O’Donnell chose to restrict
her conversations with appellant to business after appellant told her “how things were done” and
that, if she wanted to keep things running smoothly, she “would not make any changes.”
Ms. Hofstetter indicated that Ms. O’Donnell believed that her responsibility as an officer in
charge was to make changes that she saw fit. She stated that overtime was an administrative
matter. Ms. Hofstetter further stated that signing the volunteer list for a holiday was only an
indication of the employee’s willingness to work on a holiday, if operationally necessary; it was
not a guarantee of being scheduled. When the schedule was posted, appellant was not on it as
her services were not needed on that holiday. Ms. Hofstetter stated that, while the police report
might be controversial, appellant failed to obey instructions to leave the facility and appellant
should have addressed her issues through the grievance procedure. She advised that a meeting
was held with various management personnel and appellant to open the lines of communication
and to attempt to resolve any outstanding issues. Ms. Hofstetter indicated that all matters were
resolved during the meeting and appellant offered to return to work prior to her physician’s
original return to work date. She stated that payments were made to appellant in good faith in
order to resolve the issues at hand. Ms. Hofstetter denied that such payments were an admission
of any wrongdoing on the part of Ms. O’Donnell. She advised that Ms. O’Donnell had elected to
return to her former position and was not removed.
In a January 12, 2007 decision, the Office denied appellant’s claim finding that her
claimed emotional condition did not occur in the performance of duty. The Office found that
appellant established a compensable employment factor on October 9, 2006 when her supervisor
1

The grievances concerned a September 25, 2006 alleged violation by management regarding the overtime
desired list.

3

slammed the door in her face after being rude and unprofessional in her conversation. However,
the claim was denied as the medical evidence did not attribute appellant’s emotional condition to
the accepted factor.
LEGAL PRECEDENT
To establish a claim that he or she sustained an emotional condition in the performance of
duty, a claimant must submit: factual evidence identifying employment factors or incidents
alleged to have caused or contributed to his or her condition, medical evidence establishing that
he or she has an emotional or psychiatric disorder and rationalized medical opinion evidence
establishing that the identified compensable employment factors are causally related to his or her
emotional condition.2 If a claimant does implicate a factor of employment, the Office should
then determine whether the evidence of record substantiates that factor. When the matter
asserted is a compensable factor of employment and the evidence of record establishes the truth
of the matter asserted, the Office must base its decision on an analysis of the medical evidence.3
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness
has some connection with employment but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the medical evidence establishes that the disability
results from an employee’s emotional reaction to her regular or specially assigned employment
duties or to a requirement imposed by the employing establishment, the disability comes within
coverage of the Federal Employees’ Compensation Act. The same result is reached when the
emotional disability resulted from the employee’s emotional reaction to the nature of her work or
her fear and anxiety regarding her ability to carry out her work duties.4 By contrast, there are
disabilities having some kind of causal connection with the employment that are not covered
under workers’ compensation law because they are not found to have arisen out of employment,
such as when disability results from an employee’s fear of reduction-in-force or frustration from
not being permitted to work in a particular environment or hold a particular position.5
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.6 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
2

Leslie C. Moore, 52 ECAB 132 (2000).

3

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

4

Ronald J. Jablanski, 56 ECAB ____ (Docket No. 05-482, issued July 13, 2005); Lillian Cutler, 28 ECAB 125,
129 (1976).
5

Id.

6

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

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factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.7
ANALYSIS
Appellant alleged that Ms. O’Donnell, the officer in charge, harassed and retaliated
against her after she filed several grievances. She alleged that Ms. O’Donnell did not want to
give her overtime on September 30, 2006 or pay her for overtime worked October 7, 2006; that
she had signed the volunteer work form to work the October 9, 2006 holiday but Ms. O’Donnell
had changed the dates of the holiday schedule from October 7 to 9, 2006; and that
Ms. O’Donnell’s behavior was unprofessional and extremely rude and very demanding on
October 9, 2006.
To the extent that incidents alleged as constituting harassment by a supervisor are
established as occurring and arising from appellant’s performance of her regular duties, these
could constitute employment factors.8 However, for harassment or discrimination to give rise to
a compensable disability under the Act, there must be evidence that harassment did in fact occur.
Mere perceptions of harassment are not compensable under the Act.9
The factual evidence fails to support appellant’s claim regarding harassment. The
employing establishment indicated that appellant told Ms. O’Donnell not to make changes;
however, it was Ms. O’Donnell’s responsibility to make changes she deemed necessary to ensure
a smooth operation. Appellant, however, failed to provide sufficient evidence of specific
incidents she believed constituted harassment.10 Although appellant filed a number of
grievances with respect to the personnel matters, the Board has held that grievances and EEO
complaints, by themselves, do not establish that workplace harassment or unfair treatment
occurred.11 While the record indicates that appellant received various settlements, the employing
establishment specifically refuted that such settlements were an admission of wrongdoing on the
part of Ms. O’Donnell. Thus, appellant has not established a compensable employment factor
under the Act with respect to the claimed harassment.
The Office, however, accepted that Ms. O’Donnell’s behavior (yelling at her and
slamming the door in her face) on October 9, 2006 constituted a compensable factor. The Board
has recognized the compensability of verbal altercation or abuse in certain circumstances. The
statement from Officer Burns supports appellant’s allegation that Ms. O’Donnell spoke to her in
7

Id.

8

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

9

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991). See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a
claimant must substantiate allegations of harassment or discrimination with probative and reliable evidence).
10

See Joel Parker, Sr., 43 ECAB 220 (1991). (The Board held that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence).
11

James E. Norris, 52 ECAB 93 (2000).

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an abusive manner and slammed the door in their faces. This is a compensable factor of
employment.12
Other allegations by appellant regarding overtime matters and holiday work relate to
administrative or personnel actions. As a general rule, an employee’s emotional reaction to
administrative or personnel actions taken by the employing establishment is not covered because
such matters pertain to procedures and requirements of the employer and are not directly related
to the work required of the employee. An administrative or personnel matter will be considered
to be an employment factor, however, where the evidence discloses error or abuse on the part of
the employing establishment.13
Appellant alleged that Ms. O’Donnell did not want to give her overtime on September 30,
2006 or pay her for overtime worked October 7, 2006. The Board notes that the handling of
leave requests and attendance matters are generally related to the employment, they are
administrative functions of the employer and not duties of the employee.14 Appellant has
presented no corroborating evidence to support that the employing establishment erred or acted
abusively in this matter. There is no evidence to support appellant’s claim that the employing
establishment discriminated against her or took actions to avoid paying her overtime. With
respect to payment for October 7, 2006 overtime, the record reflects that appellant compensated
for such time. Also the record reveals that the settlement agreement does not impute any finding
of fault. The employing establishment specifically advised that such payments were done in
good faith and were not an admission of any wrongdoing. The Board finds that the employing
establishment acted reasonably in this administrative matter and appellant has not established a
compensable factor of employment with respect to this allegation.
Appellant alleged that she was not allowed to work on a holiday although she had signed
on the holiday schedule. The employing establishment explained that signing the volunteer list
for holiday work was not a guarantee of being scheduled. Although appellant assumed her
services were needed, they were not needed for that holiday. The Board notes that assignment of
work is an administrative function15 and the manner in which a supervisor exercises his or her
discretion falls outside the ambit of the Act. Absent evidence of error or abuse, appellant’s mere
disagreement or dislike of a managerial action is not compensable.16 Appellant has not offered
sufficient evidence to establish error or abuse regarding not being scheduled for holiday work
even though she volunteered for it. The evidence also does not establish that the employing
establishment acted unreasonably. While the record reflects that appellant does not have to
repay a salary advance, this does not establish that the employing establishment acted
improperly. Moreover, the employing establishment had explained why it made payments to
appellant who has presented no corroborating evidence to support that the employing
12

See Jamel A. White, 54 ECAB 224, 229 (2002).

13

James E. Norris, 52 ECAB 93 (2000).

14

See Judy Kahn, 53 ECAB 321 (2002).

15

Donney T. Drennon-Gala, 56 ECAB ___ (Docket No. 04-2190, issued April 26, 2005).

16

See Judy Kahn, 53 ECAB 321 (2002).

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establishment acted unreasonably.
employment in this regard.

Appellant has not established a compensable factor of

Appellant’s burden of proof is not discharged by the fact that she has established an
employment factor which may give rise to a compensable disability under the Act. To establish
her occupational disease claim, appellant must also submit rationalized medical evidence
establishing that her claimed conditions are causally related to the accepted compensable
employment factor.17 While it is not disputed that appellant has an emotional condition, the
medical evidence does not explain how or why the accepted employment factor caused or
contributed to the emotional condition.
Appellant submitted medical evidence from Dr. Wong. In a chart note of October 10,
2006, Dr. Wong indicated that appellant experienced anxiety and a panic attack after a
confrontation at work. However, Dr. Wong provided no further details on identifying the
compensable employment factor as contributing to appellant’s condition. In an October 10, 2006
prescription note and in his October 19 and 23, 2006 notes, he stated that appellant was disabled
due to stress and anxiety which started on October 10, 2006. However, this is a vague, general
statement with no details or any rationale to explain how or why the accepted employment factor
caused or contributed to the emotional condition.
The Board finds that appellant has not submitted rationalized medical evidence
establishing that her claimed condition is causally related to the accepted compensable
employment factor.
CONCLUSION
Appellant has not met her burden of proof in establishing that she developed an
emotional condition in the performance of duty.

17

See William P. George, 43 ECAB 1159 (1992).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 12, 2007 is affirmed.
Issued: September 12, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF THE NAVY, PACIFIC
)
FLEET SHIPYARDS, Bremerton, WA, Employer )
__________________________________________ )
R.M., Appellant

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

Docket No. 15-1730
Issued: December 24, 2015

Case Submitted on the Record

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

JURISDICTION
On August 17, 2015 appellant filed a timely appeal from a June 10, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant filed a timely claim for compensation under 5 U.S.C.
§ 8122.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the June 10, 2015 decision. Because the
Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final merit decision, the
Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57
ECAB 126 (2005). However, on November 12, 2015 the Board received a pleading from the Director of OWCP
noting that OWCP did receive documentation on July 24, 2015 of hearing tests conducted during appellant’s federal
employment. The Director indicated that upon return of the case record to OWCP the new evidence would be
reviewed by OWCP.

FACTUAL HISTORY
On April 21, 2015 appellant, then a 73-year-old retired chief test engineer, filed an
occupational disease claim (Form CA-2) alleging that on November 1, 1993 he first became
aware of his bilateral hearing loss and first realized that it was caused or aggravated by duties of
his federal employment. He stated that he had not been informed that hearing loss was an injury
and that explained his delay in filing. The employing establishment noted that appellant retired
on May 27, 1994.
On April 22, 2015 OWCP requested that appellant submit additional evidence to
establish his claim. It noted that the evidence of record did not establish that he provided timely
notification of his work injury. OWCP also requested that the employing establishment submit
any factual and medical evidence related to appellant’s noise exposure.
By letter dated February 9, 2015, appellant provided his employment history. He noted
that from 1959 through 1979 he worked for the U.S. Navy as a nuclear engineman, where he was
exposed to industrial noise for eight hours per day and was not offered safety devices. From
1980 through 1994, appellant worked as a chief test engineer in engine rooms, where he was
exposed to industrial noise for four hours per day, and was provided and used hearing protection
equipment. He noted hobbies of hunting and woodworking. Appellant stated that his claim was
filed in a timely manner because his immediate supervisor had knowledge of his injury when
hearing tests were performed in accordance with a hearing conservation program at the
employing establishment. He explained that he only realized his hearing loss was a compensable
injury when he was informed by the Veterans Administration.
By letter dated May 11, 2015, the employing establishment sent a letter to appellant
noting that it had sent its medical records regarding hearing tests to another location, and gave
appellant instructions to request medical records from this location.
On May 29, 2015 the employing establishment controverted appellant’s claim. It stated,
“As [appellant] is retired, there is no supervisor to comment. The [employing establishment]
does not know if he was in the hearing conservation program (HCP)…. He is instructed that
once [his medical file is received from the National Archives and Records Administration], he
can then copy and mail his audiograms to our office. We will then be able to comment on the
HCP and forward the audiograms to your office….”
By decision dated June 10, 2015, OWCP denied appellant’s claim for hearing loss as it
was not timely filed within three years of the date of last exposure or that his immediate
supervisor had actual knowledge of the hearing loss within 30 days of the date of last exposure.
OWCP found that the date of appellant’s last exposure was May 27, 1994, his retirement date.
LEGAL PRECEDENT
The issue of whether a claim was timely filed is a preliminary issue that precedes any
determination on the merits of the claim.3 In cases of injury on or after September 7, 1974,
section 8122(a) of FECA provides that an original claim for compensation for disability or death
3

Charles Walker, 55 ECAB 238, 239 (2004); see Charles W. Bishop, 6 ECAB 571, 571 (1954).

2

must be filed within three years after the injury or death. Compensation for disability or death,
including medical care in disability cases, may not be allowed if a claim is not filed within that
time unless: (1) the immediate superior had actual knowledge of the injury or death within 30
days. The knowledge must be such as to put the immediate superior reasonably on notice of an
on-the-job injury or death; or (2) written notice of injury or death as specified in section 8119
was given within 30 days.4
Section 8119 of FECA provides that a notice of injury or death shall be given within 30
days after the injury or death; be given to the immediate superior of the employee by personal
delivery or by depositing it in the mail properly stamped and addressed; be in writing; state the
name and address of the employee; state the year, month, day and hour when and the particular
locality where the injury or death occurred; state the cause and nature of the injury, or in the case
of death, the employment factors believed to be the cause; and be signed by and contain the
address of the individual giving the notice.5 Actual knowledge and written notice of injury under
section 8119 serve to satisfy the statutory period for filing an original claim for compensation.6
For actual knowledge of a supervisor to be regarded as timely filed, an employee must show not
only that the immediate superior knew that he or she was injured, but also knew or reasonably
should have known that it was an on-the-job injury.7
Section 8122(b) of FECA provides that the time for filing in latent disability cases does
not begin to run until the claimant is aware or by the exercise of reasonable diligence should
have been aware, of the causal relationship between the employment and the compensable
disability, and the Board has held that the applicable statute of limitations commences to run
although the employee does not know the precise nature of the impairment.8
In a case of occupational disease, the time for filing a claim begins to run when the
employee first becomes aware, or reasonably should have been aware, of a possible relationship
between his condition and his employment. When an employee becomes aware or reasonably
should have been aware that he or she has a condition which has been adversely affected by
factors of his or her federal employment, such awareness is competent to start the limitation
period even though the employee does not know the precise nature of the impairment or whether
the ultimate result of such affect would be temporary or permanent.9 Where the employee
continues in the same employment after he or she reasonably should have been aware that he or
she has a condition which has been adversely affected by factors of federal employment, the time
limitation begins to run on the date of the last exposure to the implicated factors.10 The

4

5 U.S.C. § 8122(a).

5

Id. at § 8119; Larry E. Young, 52 ECAB 264, 266 (2001).

6

Laura L. Harrison, 52 ECAB 515, 517 (2001).

7

Delmont L. Thompson, 51 ECAB 155, 156 (1999).

8

5 U.S.C. § 8122(b); see Luther Williams, Jr., 52 ECAB 360, 361 (2001).

9

Larry E. Young, supra note 5.

10

Id.

3

requirement to file a claim within three years is the claimant’s burden and not that of the
employing establishment.11
ANALYSIS
The Board finds that appellant has not established that his hearing loss claim was timely
filed.
On April 21, 2015 appellant filed an occupational disease claim alleging that on
November 1, 1993 he became aware of his bilateral hearing loss and first realized that it was
caused or aggravated by duties of his federal employment. The employing establishment noted
that appellant retired on May 27, 1994. As appellant continued to be exposed to alleged
hazardous noise after his realization that it was caused or aggravated by duties of his federal
employment, the time limitation for filing the claim began to run on the date of last exposure to
hazardous noise, which was his date of retirement on May 27, 1994.12 Appellant had three years
from May 27, 1994 to timely file his claim. As his claim was not filed until April 21, 2015, the
Board finds that it was not timely filed within the three-year period of limitation.
Appellant’s claim would still be regarded as timely under section 8122(a) of FECA if his
immediate supervisor had actual knowledge of the injury, or if he provided written notice, within
30 days of his injury, i.e., within 30 days of May 27, 1994. The record does not reflect that
appellant provided written notice of injury prior to filing the instant claim, and there is no
evidence of record to indicate that a supervisor had actual knowledge within 30 days of
May 27, 1994. Although appellant submitted a work history and claimed that he was enrolled in
an HCP such that his immediate supervisor had notice, he did not submit any evidence to support
these claims. While the Board has recognized in previous cases that evidence regarding any
HCPs could be sufficient to establish timely notice of hearing loss,13 these documents would be
in the possession of the employing establishment. The employing establishment has explained
that the records in question had been sent to the National Archives and Records Administration
(NARA), were no longer in the possession of the employing establishment, and advised
appellant how to gain access to these records.14
Appellant did not submit further evidence indicating that he had attempted to obtain the
records in question. He therefore did not meet his burden of proof to establish enrollment in an
HCP indicating actual knowledge by a supervisor of his hearing loss.
Appellant noted that he did not know he could file a claim for hearing loss until he was
recently informed by the Veterans Administration. The Board has held that unawareness of
possible entitlement, lack of access to information, or ignorance of the law or one’s rights and
obligations under it do not constitute exceptional circumstances that excuse a failure to file a

11

Debra Young Bruce, 52 ECAB 315, 317 (2001).

12

See Larry E. Young, supra note 5.

13

John J. Sullivan, 37 ECAB 526 (1986).

14

See T.M., Docket No. 14-1631 (issued December 2, 2014).

4

timely claim.15
compensation.

As such, the Board finds that appellant did not file a timely claim for

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to file a timely claim for compensation under
5 U.S.C. § 8122.
ORDER
IT IS HEREBY ORDERED THAT the June 10, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 24, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

15

See R.A., Docket No. 12-1339 (issued December 6, 2012).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.O., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Lubbock, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 12-1486
Issued: January 2, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 2, 2012 appellant filed a timely appeal from an Office of Workers’
Compensation Programs (OWCP) overpayment decision dated May 18, 2012. Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are:
(1) whether appellant received a $1,924.56 overpayment of
compensation; and (2) whether OWCP abused its discretion in denying waiver of the
overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on June 9, 2011 appellant, then a 40-year-old transportation security
officer, sustained a thoracic or lumbosacral neuritis or radiculitis in the performance of duty.
Appellant received wage-loss compensation for total disability effective July 24, 2011 for which
she was placed on periodic rolls.
In a decision dated October 28, 2011, OWCP issued a preliminary finding that an
overpayment of $1,924.56 arose from July 24 to September 24, 2011 because appellant was paid
at an incorrect pay rate. It found appellant without fault and explained that she should have
received compensation based on a weekly pay rate of $688.66 instead of $973.78. OWCP
explained that the initial weekly pay rate had included incorrect amounts for Sunday premium
and night differential, which were corrected effective September 25, 2011. The documents
indicated that appellant was being overpaid night differential in the amount of $259.20 a week
whereas she should have received $6.48 a week. It also indicated that her Sunday premium was
overpaid in the amount of $64.80 a week whereas the correct amount was $32.40 a week. These
amounts were overpaid for the period July 24 to September 24, 2011 and OWCP provided a
memorandum containing calculation of this overpayment totaling $1,924.56. Appellant was
informed of her options if she wished to challenge the fact of overpayment or to request waiver
of recovery of the overpayment. If she wished a waiver of the overpayment, she was advised to
submit financial information and a completed overpayment recovery questionnaire (OWCP-20)
within 30 days.
On November 16, 2011 appellant requested a prerecoupment hearing and submitted a
completed overpayment recovery questionnaire. She indicated that the overpayment occurred
through no fault of her own and requested a waiver. Appellant reported appoximately $7,555.00
as income. Her expenses were reported as $2,231.98 a month, including $335.98 for rent,
$400.00 for food, $200.00 for clothing, $800.00 for utilities and $496.00 for miscellaneous
household expenses. Appellant also included various debts being paid totaling $2,637.56 a
monthly installment. She reported four children as dependents and a total of $1,170.00 in her
checking account.
At the March 8, 2012 prerecoupment hearing, appellant testified that she only earned a
monthly income of $1,600.00 from her employment at the Transportation Security
Administration. She stated that she listed the total monthly income as $7,555.00 because she
included the monthly income from her father’s children who lived with her at the time of her
overpayment. Appellant stated that she provided no support for her 22-year-old son but provided
support for her 20-year-old daughter who was in college. OWCP requested pay stubs verifying
her current monthly take home pay from her employing establishment, as well as pay stubs of
her children’s father’s earnings. OWCP’s hearing representative requested additional financial
information clarifying the household income and members of the household, documentation in
support of household expenses claimed, copies of the last monthly statement for each current
debt, copies of federal income tax returns and more recent statements regarding all bank
accounts and funds. Appellant testified that she did not know how much her compensation
payments would be or should have been. The hearing representative allowed 30 days for a
response and an opportunity to submit documentation of financial information. No response or
supporting financial documentation was received.

2

By decision dated May 18, 2012, the Branch of Hearings and Review found that there
was an overpayment in the amount of $1,924.56 for the period July 24 to September 24, 2011. It
further found that appellant was not at fault in the creation of the overpayment because she was
not and could not have been aware that she was not entitled to the payment received. OWCP’s
hearing representative determined that the overpayment was not subject to waiver because
appellant did not submit the requested financial information to determine her income, expenses,
liabilities or funds. Thus, there was no evidence in the record that recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience.
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.2 Section 8129(a) of FECA provides, in pertinent part:
When an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which an
individual is entitled.3
Section 8116(a) of FECA provides that while an employee is receiving compensation or
if he or she has been paid a lump sum in commutation of installment payments until the
expiration of the period during which the installment payments would have continued, the
employee may not receive salary, pay or remuneration of any type from the United States, except
in limited specified instances.4
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $1,924.56. The record reflects that she received an overpayment of compensation for the
period July 24 to September 24, 2011 due to incorrect amounts for Sunday premiums and an
improper rate of night differential, which were corrected effective September 25, 2011. As to the
amount, OWCP provided an explanation for its calculations. The documents indicated that
appellant was being overpaid night differential in the amount of $259.20 a week whereas she
should have received $6.48 a week. Appellant’s Sunday premium was overpaid in the amount of
$64.80 a week whereas the correct amount was $32.40 a week. This resulted in an overpayment
for the period July 24 to September 24, 2011 in the amount of $1,924.56. Appellant has not
submitted any evidence disputing the fact and amount of the overpayment and the Board finds
that she received a $1,924.56 overpayment.

2

5 U.S.C. § 8102(a).

3

Id. at § 8129(a).

4

Id. at § 8116(a).

3

LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter
that rests within OWCP’s discretion pursuant to statutory guidelines.5 These statutory guidelines
are found in section 8129(b) of FECA which states: Adjustment or recovery (of an
overpayment) by the United States may not be made when incorrect payment has been made to
an individual who is without fault and when adjustment or recovery would defeat the purpose of
this subchapter or would be against equity and good conscience.6 If OWCP finds a claimant to
be without fault in the matter of an overpayment, then, in accordance with section 8129(b),
OWCP may only recover the overpayment if it determined that recovery of the overpayment
would neither defeat the purpose of FECA nor be against equity and good conscience.
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose
of FECA if recovery would cause hardship because the beneficiary needs substantially all of her
income (including compensation benefits) to meet current ordinary and necessary living
expenses and also, if the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data provided by the Bureau of Labor Statistics.7 According to 20 C.F.R. § 10.437,
recovery of an overpayment is considered to be against equity and good conscience when an
individual who received an overpayment would experience severe financial hardship attempting
to repay the debt and when an individual, in reliance on such payments or on notice that such
payments would be made, gives up a valuable right or changes his position for the worse.8 To
establish that a valuable right has been relinquished, it must be shown that the right was in fact
valuable, that it cannot be regained and that the action was based chiefly or solely in reliance on
the payments or on the notice of payment.9
ANALYSIS -- ISSUE 2
Appellant submitted a completed overpayment recovery questionnaire with financial
information outlining her income, expenses and assets. However, at the March 8, 2012 hearing,
OWCP’s hearing representative requested additional information and documentation related to
her monthly income and expenses. Appellant did not submit the requested information. Further,
she made no argument that she gave up a valuable right or changed her position for the worse in
reliance on the overpaid compensation prior to the issuance of OWCP’s May 18, 2012 decision.

5

See Robert Atchison, 41 ECAB 83, 87 (1989).

6

5 U.S.C. § 8129(b).

7

20 C.F.R. § 10.436. An individual is deemed to need substantially all of his monthly income to meet current
and ordinary living expenses if monthly income does not exceed monthly expenses by more than $50.00. Desiderio
Martinez, 55 ECAB 245 (2004). OWCP procedures provide that assets must not exceed a resource base of
$4,800.00 for an individual or $8,000.00 for an individual with a spouse or dependent plus $960.00 for each
additional dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions,
Chapter 6.200.6(a) (October 2004).
8

Id. at § 10.437(a)(b).

9

Id. at § 10.437(b)(1).

4

As appellant did not submit complete financial information, there was insufficient
evidence before OWCP establishing that recovery of the overpayment would defeat the purpose
of FECA or would be against equity or good conscience.10 As she failed to submit the requested
information, as required by section 10.438 of its regulations, she was not entitled to a waiver.11
The Board finds that OWCP properly denied waiver of recovery of the $1,924.56 overpayment
of compensation.12
On appeal, appellant argues that she did not submit the required financial documentation
because she was diagnosed with cancer on March 17, 2012 and that her medical conditions were
causing her severe financial hardship. She further alleged that her financial circumstances had
changed for the worse, but OWCP’s overpayment determination with respect to waiver was
based on information and documentation it received regarding appellant’s financial
circumstances at the time of its May 18, 2012 decision. The Board’s consideration of this matter
is limited to the sufficiency of OWCP’s actions at the time it issued its May 18, 2012 decision.
The waiver issue is determined in accord with FECA, Board precedent and regulatory authority
and the Board finds the evidence submitted prior to OWCP’s decision supported the denial of
waiver.13
CONCLUSION
The Board finds that appellant received a $1,924.56 overpayment of compensation for the
period July 24 to September 24, 2011. The Board further finds that OWCP did not abuse its
discretion by refusing to waive recovery of the overpayment.

10

Id. at 10.438(a) (in requesting waiver, the overpaid individual has the responsibility for providing financial
information).
11

Id.

12

M.S., Docket No. 11-96 (issued August 17, 2011).

13

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the May 18, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 2, 2013
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.A., Appellant
and
U.S. POSTAL SERVICE, WEST PALM BEACH
PROCESSING & DISTRIBUTION CENTER,
West Palm Beach, FL, Employer
__________________________________________

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Appearances:
C.B. Weiser, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1564
Issued: August 30, 2021

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 August 24, 2020 appellant, through counsel, filed a timely appeal from a May 21, 2020
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180
days has elapsed from OWCP’s last merit decision, dated July 26, 2019, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On November 30, 2011 appellant, then a 55-year-old mail processor, filed a traumatic
injury claim (Form CA-1) alleging that on that date she lost her balance, fell, and sprained her right
wrist while in the performance of duty. She stopped work on December 1, 2011. OWCP accepted
the claim for right wrist closed fracture lower end of radius, right rotator cuff tear, right shoulder
sprain, and left shoulder rotator cuff tear. It paid appellant compensation on the supplemental rolls
effective January 15, 2012, and on the periodic rolls effective February 12, 2012.
In a February 25, 2016 report, Dr. Gary Wexler, a Board-certified orthopedic surgeon,
noted appellant’s history of injury and medical treatment. He indicated that appellant was unable
to stand for long periods of time or perform repetitive activities with her upper extremities.
Dr. Wexler opined that appellant could not perform the work of a mail processing clerk due to the
“multiple injuries to her musculoskeletal systems.” He further noted that he did not believe that
there was any type of accommodation that would enable her to work in this capacity.
On April 6, 2016 OWCP referred appellant for a second opinion examination with
Dr. David B. Lotman, a Board-certified orthopedic surgeon, for an assessment of her work-related
conditions.
In an April 26, 2016 report, Dr. Lotman noted appellant’s history of injury and medical
treatment. He related appellant’s physical examination findings and indicated that appellant would
be an excellent candidate for vocational rehabilitation and reemployment. Dr. Lotman explained
that appellant had no current residuals of the accepted conditions, however, she could not be
expected to have normal shoulder function and strength without provoking symptoms. He
completed a work capacity evaluation (Form OWCP-5c) and indicated that appellant was capable
of working an eight-hour day with restrictions on the right arm to include no more than one hour
of reaching above the shoulder, no more than two hours of repetitive movements of the wrists, no
more than two hours of pushing and pulling of 20 pounds or less, no more than two hours of lifting
of no more than 20 pounds, and no climbing.
By letter dated June 3, 2016, OWCP provided a copy of Dr. Lotman’s report to the treating
physician, Dr. Wexler, and requested his opinion concerning Dr. Lotman’s findings.
In a report dated August 25, 2016, Dr. Wexler related that appellant had no change in
symptoms. He indicated that appellant’s current diagnosis was right shoulder bursitis.
By letter dated October 24, 2016, the employing establishment offered appellant a position
as a modified mail processing clerk and noted that the position was based on the restrictions
outlined in Dr. Lotman’s April 26, 2016 second opinion evaluation report. The duties of the
position included one hour right and seven hours left of manual sorting letter and flats, scanning
one to eight hours daily, answering badge intercom one to six hours daily, and registry and

2

assigning keys two hours right and six hours on the left. The physical requirements included two
hours repetitive movement of the right wrist and elbows, one hour reaching above shoulder, two
hours pushing and pulling no more than 20 pounds, lifting no more than 30 pounds, and no
climbing.
In correspondence dated October 28, 2016, the vocational rehabilitation counselor noted
that appellant did not accept the modified job offer because she was pursuing disability retirement.
OWCP received a copy of an October 10, 2016 letter from Office of Personnel Management
(OPM) which indicated that appellant’s application for disability retirement had been approved.
OWCP afforded appellant proper notices on November 29, 2016 and January 4, 2017, with
regard to the offer of suitable work. It advised appellant that the offered position was suitable,
remained available, and that her wage-loss and entitlement to a schedule award would be
terminated pursuant to 5 U.S.C. § 8106(c)(2) if she refused an offer of suitable work. OWCP
received no further correspondence from appellant.
By decision dated January 25, 2017, OWCP terminated appellant’s wage-loss
compensation and entitlement to a schedule award effective January 25, 2017, as she had refused
an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2). It noted that she had not accepted the
offered position and had not resumed work following its 15-day notice letter. OWCP determined
that the opinion of Dr. Lotman constituted the weight of the evidence and established that appellant
could perform the duties of the offered position. It advised appellant that her refusal to accept the
offered position because she was approved by OPM for retirement was not a valid reason for
refusing the position.
On February 3, 2017 appellant requested a hearing before a representative of OWCP’s
Branch of Hearings and Review, which was held on July 13, 2017.
By decision dated September 27, 2017, the hearing representative affirmed OWCP’s
January 25, 2017 decision. She found that there was no evidence that the offered position was not
within appellant’s medical restrictions as set forth by Dr. Lotman or that she could not perform the
modified clerk position as offered. The hearing representative found that OWCP had complied
with its procedural requirements to advise appellant of the offered position and provided her with
an opportunity to accept the position or provide reasons for refusing the job offer and the penalty
provision of 5 U.S.C. § 8106(c)(2). She also explained that accepting retirement was not a valid
reason to refuse the job offer.
On September 18, 2018 appellant, through counsel, requested reconsideration. Counsel
argued that the September 27, 2017 decision should be reversed. He contended that a conflict of
medical opinion arose between the treating physician Dr. Wexler and second opinion physician
Dr. Lotman; that the limited-duty job offer did not properly list Dr. Lotman’s medical restrictions
from the Form OWCP5-c; and that the job offer was made after appellant’s OPM retirement was
approved and she elected OPM benefits.
By decision dated July 26, 2019, OWCP denied modification of the September 27, 2017
decision.

3

On April 17, 2020 counsel for appellant requested reconsideration. On May 19, 2020
OWCP received a copy of a letter dated November 22, 2019 from counsel for appellant, reiterating
his prior arguments that a conflict of medical opinion arose between the treating physician
Dr. Wexler and second opinion physician Dr. Lotman, that the limited-duty job offer did not
properly list Dr. Lotman’s medical restrictions on the Form OWCP5-c, and that the job offer was
made after appellant chose OPM benefits and her OPM retirement was approved.
By decision dated May 21, 2020, OWCP denied counsel for appellant’s request for
reconsideration of the merits of her claim under 5 U.S.C. § 8128 (a). It found that she neither
raised substantive legal questions nor included new and relevant evidence and the request was
insufficient to warrant a review of the prior decision. OWCP explained that the arguments were
previously considered in the July 26, 2019 decision.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.3
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.4
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.5 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.6 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.7

3

5 U.S.C. § 8128(a); see J.C., Docket No. 20-0614 (issued February 10, 2021); L.D., Docket No. 18-1468 (issued
February 11, 2019); see also V.P., Docket No. 17-1287 (issued October 10, 2017); D.L., Docket No. 09-1549 (issued
February 23, 2010); W.C., 59 ECAB 372 (2008).
4

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
5

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of the merit decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Chapter 2.1602.4b.
6

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

7

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

4

ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
In support of his April 17, 2020 request for reconsideration, counsel repeated the same
arguments from the prior reconsideration request. Appellant did not show that OWCP erroneously
applied or interpreted a specific point of law and did not advance a new and relevant legal argument
not previously considered. She merely reiterated the previously submitted arguments. OWCP
considered and rejected these arguments when it denied modification of its prior decision. The
Board has held that the resubmission of a previously considered argument does not require
reopening of the claim for merit review.8
Accordingly, the Board finds that appellant is not entitled to a review of the merits based
on either the first or second requirement under 20 C.F.R. § 10.606(b)(3).
Upon reconsideration, counsel for appellant did not submit any evidence in support of the
claim. Therefore, appellant also failed to satisfy the third requirement under 20 C.F.R.
§ 10.606(b)(3), i.e., the submission of relevant and pertinent new evidence not previously
considered by OWCP.
The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied the request for
reconsideration without reopening the case for review on the merits.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

8
See I.M., Docket No. 20-0980 (issued February 2, 2021); N.L., Docket No. 18-1575 (issued April 3, 2019);
Eugene F. Butler, 36 ECAB 393, 398 (1984).

5

ORDER
IT IS HEREBY ORDERED THAT the May 21, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: August 30, 2021
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.J., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
CENTER FOR HUMAN RESOURCES,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 06-2090
Issued: April 5, 2007

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 September 7, 2006 appellant filed a timely appeal from a March 28, 2006 decision of
a hearing representative of the Office of Workers’ Compensation Programs who denied her
claim for an increased schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the schedule award determination in this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that she has
greater than a 13 percent impairment of each lower extremity for which she has received
schedule awards.
FACTUAL HISTORY
This case has previously been before the Board. In an April 2, 2003 decision, the Board
affirmed decisions of the Office dated November 9, 2001 and August 19, 2002, which denied

authorization for bilateral total knee replacement surgery.1 The law and the facts of the previous
Board decision are incorporated herein by reference.
On August 15, 2003 appellant filed a schedule award claim and submitted a May 22,
2003 report from Dr. Nicholas Diamond, an osteopath, who noted the history of injury, a review
of certain medical records and provided findings on examination. Dr. Diamond stated that
appellant complained of bilateral knee pain and stiffness daily and graded her pain at 6/10 on the
left and 5/10 on the right. Appellant occasionally limped and had difficulty climbing stairs and
sleeping. Dr. Diamond diagnosed post-traumatic internal derangement of the left knee with a
torn lateral meniscus; medial synovial plica syndrome; post-traumatic chondromalacia of the left
knee, status post arthroscopic surgery with partial lateral meniscectomy on December 2, 1999;
status post chondroplasty of the lateral femoral condyle and the lateral tibial plateau; status post
resection of medial synovial plica; retear of the lateral meniscus to the left knee secondary to
work-related injury of January 25, 2000; post-traumatic osteoarthritis to the left knee; status post
arthroscopic surgery to the left knee with partial lateral meniscectomy and chondroplasty of the
lateral femoral condyle and patellar chondroplasty on June 29, 2000. He also diagnosed posttraumatic internal derangement to the right knee with a torn meniscus; post-traumatic
chondromalacia patellae to the right knee; status post arthroscopic surgery to the right knee with
meniscectomy and chondroplasty on May 12, 2000; aggravation of preexisting right knee
pathology, personal injury 1991 and history of bilateral total knee arthroplasties on
February 21, 2002. Dr. Diamond advised that appellant had reached maximum medical
improvement and, in accordance with the fifth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides),2 she had
bilateral lower extremity impairments of 30 percent each. Under Table 17-8 appellant had a
quadriceps strength deficit of 12 percent and a gastrocnemius strength deficit of 17 percent and
that under Figure 18-1, she had a pain-related impairment of 3 percent.
On April 8, 2004 the Office referred the medical record including Dr. Diamond’s report
and a statement of accepted facts to an Office medical adviser for an opinion regarding
appellant’s impairment. By report dated April 20, 2004, an Office medical adviser advised that
under Table 17-33 of the A.M.A., Guides, appellant had 10 percent impairment to each lower
extremity for meniscectomies and an additional 3 percent for pain. He advised that maximum
medical improvement had been reached on March 22, 2003. By decision dated May 18, 2004,
the Office granted appellant a schedule award for 13 percent permanent impairment of the right
and left lower extremities, for a total of 74.88 weeks, to run from March 23, 2003 to
August 28, 2004.
On May 21, 2004 appellant, through her attorney, requested a hearing. In a January 11,
2005 decision, an Office hearing representative remanded the case to the Office to obtain a
supplementary report from the Office medical adviser. He was asked to provide rationale for his
use of the diagnosis-based table for total knee replacement in calculating appellant’s impairment
rating. By report dated February 6, 2005, an Office medical adviser stated that Tables 17-33 and
17-35 should not be used because, as noted in section 17.2e of the A.M.A., Guides, strength
1

Docket No. 03-330 (issued April 2, 2003).

2

A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

2

testing was not the most appropriate method to be used. He further advised that, as appellant’s
total knee replacement surgery had been found not to be employment related, the most
appropriate method to use would be under Table 17-33. The Office medical adviser found that
appellant was entitled to a 10 percent impairment for each lower extremity, based on her prior
medial and lateral meniscectomies plus an additional 3 percent impairment bilaterally for pain, to
total a 13 percent impairment for each lower extremity.
In a decision dated March 9, 2005, the Office found that appellant was not entitled to an
increased schedule award. On March 14, 2005 appellant, through counsel, requested a hearing,
that was held on February 8, 2006. Her attorney argued that Dr. Diamond’s opinion should be
credited or, in the alternative, a conflict in medical opinion had been created between his opinion
and that of the Office medical adviser. By decision dated March 28, 2006, an Office hearing
representative affirmed the March 9, 2005 decision.
LEGAL PRECEDENT
Under section 8107 of the Federal Employees’ Compensation Act3 and section 10.404 of
the implementing federal regulation,4 schedule awards are payable for permanent impairment of
specified body members, functions or organs. The Act, however, does not specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice under the law for all claimants, good administrative practice necessitates the use of
a single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides has been adopted by the Office and the Board has concurred in such adoption, as
an appropriate standard for evaluating schedule losses.5 Chapter 17 provides the framework for
assessing lower extremity impairments.6
Office procedures indicate that referral to an Office medical adviser is appropriate when a
detailed description of the impairment from the attending physician is obtained.7 When a
diagnosis-based impairment rating is applied, it is generally not appropriate to calculate
additional impairment based on anatomic or functional based methods (such as limitations of
strength or range of motion).8 It is well established that in determining entitlement to a schedule
award, preexisting impairment to the scheduled member is to be included. As noted by Larson,

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

See Joseph Lawrence, Jr., supra note 2; James J. Hjort, 45 ECAB 595 (1994); Leisa D. Vassar, 40 ECAB 1287
(1989); Francis John Kilcoyne, 38 ECAB 168 (1986).
6

A.M.A., Guides, supra note 2 at 523-64.

7

Thomas J. Fragale, 55 ECAB 619 (2004).

8

A.M.A., Guides, supra note 2, section 17.2j at 545; Derrick C. Miller, 54 ECAB 266 (2002).

3

this is “sometimes expressed by saying that the employer takes the employee as he finds him.”
Conditions acquired subsequent to the employment injury are not to be considered in schedule
award determinations.9
For lower extremity impairments due to meniscectomies or ligament injuries involving
the knees, Table 17-1, of the A.M.A., Guides directs the clinician to utilize section 17.2j as the
appropriate method of impairment assessment. Section 17.2j of the A.M.A., Guides, entitled
Diagnosis-Based Estimates, provides that some impairment estimates are more appropriately
rated on the basis of a diagnosis than on the basis of findings on physical examination and
instructs the clinician to assess the impairment using the criteria in Table 17-33, entitled
Impairment Estimates for Certain Lower Extremity Impairments.10
Section 18.3b of the fifth edition of the A.M.A., Guides provides that pain-related
impairment should not be used if the condition can be adequately rated under another section of
the A.M.A., Guides.11 Office procedures provide that, if the conventional impairment adequately
encompasses the burden produced by pain, the formal impairment rating is determined by the
appropriate section of the A.M.A., Guides. However, an impairment rating can, in some
situations, be increased by up to three percent if pain increases the burden of the employee’s
condition.12
ANALYSIS
The Board finds that appellant has lower extremity impairment of 13 percent of each leg.
In accordance with section 17.2j of the A.M.A., Guides, the Office medical adviser properly
assessed appellant’s knees on the basis of her prior approved bilateral knee meniscectomies and,
in accordance with Table 17-33, awarded her a 10 percent lower extremity impairment for the
partial medial and lateral meniscectomies that she underwent in 1999 and 2000. Appellant
would not be entitled to a rating for total knee replacements under Table 17-33 as the Board
previously found that this surgery was not authorized.13 Dr. Diamond awarded an additional
impairment rating for strength deficits of the quadriceps and gastrocnemius muscles. Section
17.2e of the A.M.A., Guides provides that, to be valid, if strength testing is made by one
examiner, the measurements should be consistent on different occasions and Table 17-7
describes the criteria on which estimates and grades for lower extremity strength are bases, with
Table 17-8 listing the actual ratings for lower extremities.14 While Dr. Diamond generally
referenced Table 17-8, he did not provide any explanation using the criteria found in Table 17-7
or other account of how he arrived at the impairment rating for muscle weakness. His report is,
9

See generally Michael C. Milner, 53 ECAB 446 (2002).

10

A.M.A., Guides, supra note 2 at 545; see James R. Hill, 57 ECAB ____ (Docket No. 05-1899, issued
May 12, 2006).
11

A.M.A., Guides, supra note 2 at 569.

12

Richard B. Myles, 54 ECAB 379 (2003).

13

Supra note 1.

14

A.M.A., Guides, supra note 2 at 531.

4

therefore, insufficient to establish that appellant is entitled to an increased schedule award for
either lower extremity based on muscle weakness.15 Furthermore, Table 17-2 of the A.M.A.,
Guides describes the types of impairment that cannot be combined, noting that muscle strength
cannot be combined with a diagnosis-based estimate.16 Dr. Diamond also found a three percent
impairment due to pain. He described appellant’s knee pain as occurring daily, that she
occasionally limped and had difficulties climbing stairs and sleeping. Intermittent pain, so long
as it is permanent, may constitute a basis for the payment of a schedule award.17 The Board,
therefore, finds that the Office medical adviser allowed an additional three percent bilaterally for
appellant’s lower extremity pain.
CONCLUSION
The Board finds that appellant has no more than 13 percent impairment of both lower
extremities.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 28, 2006 be affirmed.
Issued: April 5, 2007
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

15

See Mary L. Henninger, 52 ECAB 408 (2001).

16

A.M.A., Guides, supra note 2 at 526.

17

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
SHIPYARD, Philadelphia, PA, Employer
__________________________________________

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

Docket No. 12-251
Issued: July 18, 2012

Case Submitted on the Record

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

JURISDICTION
On November 17, 2011 appellant, through his attorney, filed a timely appeal from the
October 3, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
regarding a schedule award. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he has more than
a 30 percent permanent impairment of his left leg, for which he received a schedule award.
FACTUAL HISTORY
OWCP accepted that on December 21, 1981 appellant, then a 26-year-old machinist,
sustained a tear of the medial meniscus of his left knee due to falling off a forklift at work. It
was later accepted that he sustained traumatic arthritis of his left knee due to this work injury.
1

5 U.S.C. §§ 8101-8193.

Appellant received compensation from OWCP for periods of disability. On July 6, 1995
Dr. Michael Okin, an attending Board-certified orthopedic surgeon, performed an open
arthrotomy and medial and lateral meniscectomies on appellant’s left knee. On November 21,
1995 he performed a valgus osteotomy on appellant’s left knee. These procedures were
authorized by OWCP.
In 1996, appellant began participating in OWCP-sponsored vocational rehabilitation
efforts and he was sent to school to study computers. In September 1997, he began working as a
network technician for a private employer, but he was laid off from his job in mid 2003.
Appellant continued to receive compensation benefits for periods of disability.
In an April 14, 2004 report, Dr. Okin described appellant’s left leg condition and
indicated that a combination of factors affected his impairment rating. He noted that appellant
had advanced degenerative osteoarthritis of his left knee, 4/5 weakness of his quadriceps,
antalgic gait on the left side, loss of flexion of 35 degrees and a need for ancillary support for any
long distance travel. Dr. Okin indicated that he was providing an impairment rating under the
standards of the fifth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (5th ed. 2001) and stated, “Putting all these factors together I would give
[appellant] a 40 percent impairment of the [left] lower extremity which comes out to a 16 percent
impairment of the whole man.”
On May 11, 2004 Dr. Arnold T. Berman, a Board-certified orthopedic surgeon serving as
an OWCP medical adviser, reviewed the medical evidence of record, including the April 14,
2004 report of Dr. Okin and determined that appellant had 30 percent permanent impairment of
his left leg under the fifth edition of the A.M.A., Guides. He found that, under Table 17-33 on
page 546, appellant had 25 percent impairment of his left leg due to his osteotomy and 7 percent
impairment due to his medial meniscectomy. Dr. Berman used the Combined Values Chart on
page 604 to find that combining these values equaled a total left leg impairment of 30 percent.
In a May 25, 2004 decision, OWCP granted appellant a schedule award for 30 percent
permanent impairment of his left leg. The award was based on Dr. Berman’s evaluation of
Dr. Okin’s April 14, 2004 report.
On April 18, 2011 Dr. Okin indicated that appellant was unemployable as he had
emphysema, morbid obesity, advanced post-traumatic degenerative osteoarthritis of his left knee,
advanced osteoarthritis of his right knee and diabetes mellitus with peripheral neuropathy.
Appellant claimed entitlement to additional schedule award compensation and submitted
a May 24, 2011 report of Dr. Arthur Becan, an attending Board-certified orthopedic surgeon. In
the May 24, 2011 report, Dr. Becan concluded that appellant had a 50 percent permanent
impairment of his left leg under the standards of the sixth edition of the A.M.A., Guides (6th ed.
2009). He reported the findings of his examination and diagnosed torn medial meniscus of the
left knee, torn lateral meniscus of the left knee, status post medial and lateral meniscectomies of
the left knee, status post high tibial osteotomy of the left knee and progressive severe arthropathy
of the left knee. Dr. Becan noted that May 2011 x-rays of appellant’s left knee showed complete
loss of the cartilage along the medial compartment with a joint space of one millimeter, advanced
osteoarthritis of the patellofemoral joint and moderate arthritis of the lateral compartment with a

2

joint space of five millimeters.2 He found that, under Table 16-3 (Knee Regional Grid) on page
511, appellant had a diagnosis-based left leg impairment of “primary knee joint arthritis” for
medial joint space narrowing which fell under class 4 with a default value of 50 percent.
Dr. Becan indicated that, under Table 16-6 through Table 16-8 on pages 516-20, appellant had a
grade modifier of 4 for Functional History (GMFH) and a grade modifier of 3 for Physical
Examination (GMPE), but noted that a grade modifier score was not applicable for Clinical
Studies (GMCS). Application of the net adjustment formula yielded a net adjustment of minus
one, but moving one space to the left of the 50 percent default value on Table 16-3 still yielded a
total left leg impairment of 50 percent.
On September 11, 2011 Dr. Berman, OWCP’s medical adviser, reviewed the medical
evidence of record, including the May 24, 2011 report of Dr. Becan, and found that the evidence
did not show that appellant had more than a 30 percent permanent impairment of his left leg
under the standards of the sixth edition of the A.M.A., Guides. He indicated that, under Table
16-3, appellant had a diagnosis-based left leg impairment of “primary knee joint arthritis” for his
one millimeter medial cartilage interval which fell under class 3 and stated that he fell under a
default value of 30 percent under Table 16-3.3 Dr. Berman indicated that Dr. Becan placed
appellant under class 4 but he found that this determination was improper because class 4 was
reserved for cases where there was no cartilage interval. He noted that, under Table 16-6
through Table 16-8, appellant had a grade modifier of three for GMFH, a grade modifier of 2 for
GMPE and a grade modifier of 3 for GMCS. Application of the net adjustment formula yielded
a net adjustment of minus one and moving one space to the left of the 30 percent default value on
Table 16-3 yielded a total left leg impairment of 28 percent. Dr. Berman concluded that the
medical evidence did not show that appellant had more than a 30 percent permanent impairment
of his left leg.
In an October 3, 2011 decision, OWCP determined that appellant did not meet his burden
of proof to establish that he has more than a 30 percent permanent impairment of his left leg. It
found that Dr. Berman properly pointed out that Dr. Becan made an error in his impairment
rating.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
2

The record contains a radiologist’s impression of left knee x-rays obtained on May 3, 2011.

3

Dr. Berman considered appellant’s left leg impairment due to lateral joint space narrowing but determined that
this approach would yield a lesser left leg impairment.
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404 (1999).

3

all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6 For OWCP decisions issued on or after
May 1, 2009, the sixth edition of the A.M.A., Guides (6th ed. 2009) is used for evaluating
permanent impairment.7
In determining impairment for the lower extremities under the sixth edition of the
A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the lower
extremity to be rated. With respect to the knee, the relevant portion of the leg for the present case,
reference is made to Table 16-3 (Knee Regional Grid) beginning on page 509.8 After the class for
diagnosed condition (CDX) is determined from the Knee Regional Grid (including identification
of a default grade value), the net adjustment formula is applied using the grade modifier for
GMFH, grade modifier for GMPE and grade modifier for GMCS. The net adjustment formula is
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).9 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.10
ANALYSIS
OWCP accepted that, due to a December 21, 1981 injury, appellant sustained a tear of the
medial meniscus of his left knee and traumatic arthritis of his left knee. In a May 25, 2004
decision, it granted him a schedule award for a 30 percent permanent impairment of his left leg.
Appellant claimed entitlement to additional schedule award compensation and submitted
a May 24, 2011 report of Dr. Becan, an attending Board-certified orthopedic surgeon. The
Board finds that appellant did not show that he was entitled to a rating of more than 30 percent
permanent impairment of his left leg, for which he had already received a schedule award.
In his May 24, 2011 report, Dr. Becan concluded that appellant had a 50 percent
permanent impairment of his left leg under the standards of the sixth edition of the A.M.A.,
Guides.11 He found that, under Table 16-3, appellant had a diagnosis-based left leg impairment
of “primary knee joint arthritis” for medial joint space narrowing which fell under class 4 and
had a default value of 50 percent. Dr. Becan indicated that appellant had a grade modifier of 4
for GMFH and a grade modifier of 3 for GMFH and that application of the net adjustment
formula yielded a net adjustment of minus one. He noted that moving one space to the left of the
50 percent default value on Table 16-3 still yielded a total left leg impairment of 50 percent.

6

Id.

7

See FECA Bulletin No. 9-03 (issued March 15, 2009). For OWCP decisions issued before May 1, 2009, the
fifth edition of the A.M.A., Guides (5th ed. 2001) is used.
8

See A.M.A., Guides (6th ed. 2009) 509-11.

9

Id. at 515-22.

10

Id. at 23-28.

11

The sixth edition of the A.M.A., Guides was the appropriate edition to apply at this time. See supra note 7.

4

On September 11, 2011 Dr. Berman, a Board-certified orthopedic surgeon serving as an
OWCP medical adviser, reviewed the May 24, 2011 report of Dr. Becan and properly found that
his report did not show that appellant had more than 30 percent permanent impairment of his left
leg under the standards of the sixth edition of the A.M.A., Guides. He indicated that, under Table
16-3, appellant had a diagnosis-based left leg impairment of “primary knee joint arthritis” for his
one millimeter medial cartilage interval which fell under class 3 and he found that appellant fell
under a default value of 30 percent under Table 16-3. Dr. Berman pointed out that this class was
only warranted when there was no cartilage interval which was not the situation with this
claimant.12 His determinations that appellant had a grade modifier of 3 for GMFH, a grade
modifier of 2 for GMPE and a grade modifier of 3 for GMCS were in accordance with the
medical evidence of record. Dr. Becan indicated that appellant had a grade modifier of 4 for
GMFH, but this rating would not be warranted as appellant was not entirely nonambulatory. He
also found a grade modifier of 3 for GMPE, but this was not appropriate as appellant only had
slight laxity of his left patellar mechanism. See A.M.A., Guides 516-17, Table 16-6 and Table
16-7. Dr. Berman applied the net adjustment formula, noting that it yielded a net adjustment of
minus one and required moving one space to the left of the 30 percent default value on Table
16-3. This calculation yielded a total left leg impairment of 28 percent and, therefore, the
medical evidence did not show that appellant had more than a 30 percent permanent impairment
of his left leg.
For these reasons, appellant has not shown that he has more than a 30 percent permanent
impairment of his left leg and OWCP properly denied his claim for additional schedule award
compensation.
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 did not meet his burden of proof to establish that he has
more than a 30 percent permanent impairment of his left leg, for which he received a schedule
award.

12

See A.M.A., Guides 511, Table 16-3.

5

ORDER
IT IS HEREBY ORDERED THAT the October 3, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 18, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6