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

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Appearances:
Dean T. Albrecht, for the appellant
Office of Solicitor, for the Director

Docket No. 09-1796
Issued: June 18, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 6, 2009 appellant filed a timely appeal from the July 17, 2008 and May 28, 2009
merit decisions of the Office of Workers’ Compensation Programs concerning her entitlement to
compensation after March 18, 2007. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.1
ISSUE
The issue is whether appellant had residuals of her work-related emotional condition after
March 18, 2007.

1

For Office decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal of
Office decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 5013(e) (2008).

FACTUAL HISTORY
On November 17, 1994 the Office accepted that appellant, then a 54-year-old window
distribution clerk, sustained a major depressive disorder as a result of an April 5, 1994 assault in
the workplace by a coworker.2 Appellant stopped work for various periods and received wageloss compensation.
Appellant received treatment from Charles Wheaton, Ph.D., a clinical psychologist, who
diagnosed prolonged post-traumatic stress disorder due to the April 5, 1994 incident.
Dr. Wheaton indicated that appellant showed symptoms, including intrusion of related material
into her consciousness, avoidance of related anxiety producing stimuli and increased emotional
arousal, which were characteristics of post-traumatic stress disorder. On December 29, 2003 the
Office changed the accepted injury from major depressive disorder to prolonged post-traumatic
stress disorder. Appellant stopped work on October 21, 2004 and did not return.
In mid 2005, the Office referred appellant to Dr. Alexander Kechriotis, a Board-certified
psychiatrist, for a second opinion evaluation. On July 22, 2005 Dr. Kechriotis determined that
appellant’s work-related condition had resolved. He found that she no longer met the criteria for
post-traumatic stress disorder or a depressive disorder. Dr. Kechriotis advised that appellant’s
adjustment problems and associated anxiety were not related to her work.
On August 26, 2005 the Office requested that Dr. Wheaton review the reports of
Dr. Kechriotis and provide comments. In September 16 and November 1, 2005 reports,
Dr. Wheaton disagreed with Dr. Kechriotis’ opinion and stated that appellant continued to be
disabled by post-traumatic stress disorder related to the April 5, 1994 work incident. He
indicated that appellant exhibited several criteria of the condition including markedly diminished
interest or participation in significant activities and avoidance of activities, places or people that
arouse recollections of the trauma.
The Office determined that a conflict in medical opinion arose between Dr. Kechriotis
and Dr. Wheaton regarding whether appellant continued to have residuals of the accepted
employment injury. In order to resolve the conflict, it referred her to Dr. John R. Delaney, a
Board-certified psychiatrist, for an impartial medical examination, pursuant to section 8123(a) of
the Federal Employees’ Compensation Act.
On April 3, 2006 Dr. Delaney reviewed a history of appellant’s medical treatment and
noted that she began to develop emotional problems in the 1990s sometime during her second
marriage or after its termination. In 1995, a mental health counselor indicated that he had been
working with appellant for about five years with an initial focus on her marriage, divorce and the
reaction of her children to the process. Dr. Delaney stated that appellant had a great deal of
stress over the years which predated the April 5, 1994 work incident and that this nonworkrelated stress continued to the present time. Appellant’s nonwork-related stress included the
sudden death of her father within about two months of the April 5, 1994 work incident, dealing
with the substance abuse problems and legal problems of her younger son, helping to raise the
2

The record reveals that a coworker came up behind appellant and placed his right forearm on her upper body
and his left hand on her mouth after she accused him of sexually harassing another coworker.

2

child of her oldest son whose wife was severely mentally ill, moving in with and caring for her
mother who has an inoperable brain tumor and dealing with the long-term mental instability of
her younger brother, a Vietnam veteran. Dr. Delaney determined that appellant’s present
emotional condition was nonwork-related chronic anxiety disorder which had been present for
many years. Appellant did not show any evidence of post-traumatic stress disorder in her present
clinical presentation. Dr. Delaney noted that the physician who initially treated appellant after
April 1994 diagnosed a major depressive episode in the presence of a long-standing dysthymia.
He advised that, with the help of medical treatment, appellant’s depressive disorder and posttraumatic stress disorder eventually resolved over time. The condition that remained was
appellant’s preexisting chronic anxiety disorder which at times had elements of depression, panic
and phobias.3
In a January 11, 2007 letter, the Office advised appellant that it proposed to terminate her
compensation. It noted that the opinion of Dr. Delaney represented the weight of the medical
evidence with respect to continuing work-related residuals. The Office provided her an
opportunity to submit additional evidence in support of her claim.
In a January 30, 2007 letter, Dr. Wheaton reiterated his diagnosis of post-traumatic stress
disorder and his opinion that appellant was totally disabled. He stated that appellant met all the
diagnostic criteria for the condition, including distressing dreams and intense psychological
distress. Dr. Wheaton discounted appellant’s treatment for emotional conditions prior to April 5,
1994 and indicated that the assault of appellant by her brother with a motor vehicle occurred
after Dr. Delaney’s evaluation. He stated that the symptoms of appellant’s original work-related
condition were reactivated by her proposed return to the employing establishment, the life
stressors cited by Dr. Delaney and the harassment by her brother (including assault).
In a February 5, 2007 letter, Dr. George Warren, an attending Board-certified
psychiatrist, stated that he disagreed with the opinion of Dr. Delaney. He indicated that
Dr. Delaney’s opinion was disputed by those of several physicians and stated, “It is likely that
[appellant’s] current condition stems from the accepted work-related condition.”
In a March 7, 2007 decision, the Office terminated appellant’s compensation benefits
effective March 18, 2007 based on the opinion of Dr. Delaney.
In an April 11, 2007 report, Dr. Walter B. Afield, an attending Board-certified
psychiatrist, stated that appellant had been treated five years prior to April 5, 1994 by a licensed
mental health counselor. Appellant had the symptomology of post-traumatic stress disorder,
including difficulty in close places and avoiding places she needed to be. Dr. Afield indicated
that appellant’s problems with her abusive brother intensified the reaction which she had from
the work-related incident. He recommended psychological testing to determine whether
appellant could work. Dr. Afield conducted testing on May 16, 2007 which he stated showed
that appellant had severe post-traumatic stress disorder.

3

Dr. Delaney also completed a work restrictions form indicating that appellant could return to her regular duties
as a window distribution clerk.

3

In a November 17, 2007 decision, the Office affirmed its March 7, 2007 decision. It
found that Dr. Afield’s reports were not based on a complete or accurate factual and medical
history.
Appellant submitted notes dated January 3 to April 8, 2008 from Dr. Afield who
continued to diagnose post-traumatic stress disorder. Dr. Afield stated that appellant had legal
issues concerning her brother which continued to cause her to be upset.
In a July 17, 2008 decision, the Office affirmed its November 20, 2007 decision. It noted
that Dr. Afield related appellant’s problems to nonwork factors.
Appellant requested reconsideration arguing, through her attorney, that there was a
conflict in the medical evidence regarding her work-related residuals. In a September 3, 2008
report, Dr. Afield advised that appellant continued to have post-traumatic stress disorder related
to the April 5, 1994 work incident as evidenced by such symptoms as recurring nightmares about
the incident. He stated that appellant appeared to have “the ability to work through” her
nonwork-related problems.
In a November 10, 2008 decision, the Office affirmed its July 17, 2008 decision.
In a February 20, 2009 report, Dr. Gary K. Arthur, an attending Board-certified
psychiatrist, noted that appellant reported that she had occasional intrusive memories of the
April 5, 1994 events and that she had minimal stressors not related to that incident, other than
financial stressors. Dr. Arthur stated that the diagnosis of post-traumatic stress disorder had a
confusing and controversial history and that many psychiatrists hesitated to diagnose it. He
noted that all the prior evaluators diagnosed post-traumatic stress disorder, anxiety or depression
due to the April 5, 1994 incident. Dr. Arthur indicated that research showed that post-traumatic
stress disorder causes neuromicrobiological changes in the brain (some permanent) which cause
patients to have an underlying constant ability to overreact to stressors, particularly those similar
to the original stressor. He concluded that appellant’s post-traumatic stress disorder was “a
neurobiological damage deficiency condition which is never going to be resolved or go away.”
Dr. Arthur attached several articles regarding post-traumatic stress disorder.
In a May 28, 2009 decision, the Office affirmed its July 17, 2008 decision, finding that
Dr. Arthur did not provide adequate medical rationale.
LEGAL PRECEDENT
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.4 It may not terminate compensation without establishing
that the disability ceased or that it was no longer related to the employment.5 After termination
or modification of compensation benefits, clearly warranted on the basis of the evidence, the
burden for reinstating compensation benefits shifts to appellant. In order to prevail, appellant

4

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

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Id.

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must establish by the weight of the reliable, probative and substantial evidence that he or she had
a employment-related disability which continued after termination of compensation benefits.6
Section 8123(a) of the Act provides in pertinent part: “If there is 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.”7 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of the Act, to resolve the conflict in the medical
evidence.8 In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.9
The Board has held that newspaper clippings, medical texts and excerpts from publications
are of no evidentiary value in establishing the necessary causal relationship between a claimed
condition and employment factors because such materials are of general application and are not
determinative of whether the specifically claimed condition is related to the particular employment
factors alleged by the employee.10
ANALYSIS
The Office accepted that appellant sustained post-traumatic stress disorder due to an
April 5, 1994 assault at work. It terminated her compensation benefits as of March 18, 2007
based on the opinion of Dr. Delaney, a Board-certified psychiatrist serving as an impartial
medical specialist. The Board finds that the special weight of the medical evidence is
represented by the thorough, well-rationalized opinion of Dr. Delaney. The opinion of
Dr. Delaney established that appellant had no work-related residuals after March 18, 2007.
The Office properly determined that there was a conflict in the medical opinion between
Dr. Wheaton, an attending clinical psychologist, and Dr. Kechriotis, a Board-certified
psychiatrist serving as an Office referral physician, regarding whether appellant continued to
have residuals of her accepted employment injury.11 In order to resolve the conflict, the Office

6

Wentworth M. Murray, 7 ECAB 570, 572 (1955).

7

5 U.S.C. § 8123(a).

8

William C. Bush, 40 ECAB 1064, 1975 (1989).

9

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

10

William C. Bush, 40 ECAB 1064, 1075 (1989).

11

In a July 22, 2005 report, Dr. Kechriotis determined that appellant’s work-related condition had resolved and
indicated that she no longer met the criteria for post-traumatic stress disorder or a depressive disorder. In
September 16 and November 1, 2005 reports, Dr. Wheaton expressed his disagreement with Dr. Kechriotis’ opinion
and posited that appellant continued to be disabled by post-traumatic stress disorder related to the April 5, 1994
work incident.

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properly referred appellant to Dr. Delaney, pursuant to section 8123(a) of the Act, for an
impartial medical examination and an opinion on the matter.
On April 3, 2006 Dr. Delaney noted that it appeared from the records that appellant
began to develop emotional problems in the 1990s sometime during her second marriage or after
its termination. He noted that in 1995 a mental health counselor indicated that he had been
working with appellant for about five years with an initial focus on her marriage, divorce and the
reaction of her children to the process. Dr. Delaney stated that appellant had a great deal of
stress over the years which predated the April 5, 1994 work incident and that this nonworkrelated stress continued to the present time.12 Dr. Delaney determined that appellant’s workrelated condition, post-traumatic stress disorder, had resolved and found that her present
emotional condition was properly characterized as nonwork-related chronic anxiety disorder
which had been present for many years.
The Board has carefully reviewed the opinion of Dr. Delaney and notes that it has
reliability, probative value and convincing quality with respect to its conclusions regarding the
relevant issue of the present case. Dr. Delaney’s opinion is based on a proper factual and
medical history and he accurately summarized the relevant medical evidence. Moreover, he
provided a proper analysis of the factual and medical history and the findings on examination,
including the results of diagnostic testing, and reached conclusions regarding appellant’s
condition which comported with this analysis.13 Dr. Delaney provided medical rationale for his
opinion by explaining that appellant did not show any evidence of post-traumatic stress disorder
in her present clinical presentation. He indicated that, with the help of medical treatment,
including medications, appellant’s depressive disorder and post-traumatic stress disorder
eventually resolved over time. Dr. Delaney further explained that the condition that remained
was appellant’s preexisting chronic anxiety disorder.
After the Office’s March 7, 2007 decision terminating appellant’s compensation effective
March 18, 2007, appellant submitted additional medical evidence which she felt showed that she
was entitled to compensation after March 18, 2007 due to residuals of her accepted work injury.
Given that the Board has found that the Office properly relied on the opinion of the impartial
medical examiner, Dr. Delaney, in terminating appellant’s compensation effective March 18,
2007, the burden shifts to appellant to establish that she is entitled to compensation after that
date. The Board has reviewed the additional evidence submitted by appellant and notes that it is
not of sufficient probative value to establish that she had residuals of her accepted employment
injury after March 18, 2007.
Appellant submitted an April 11 2007 report of Dr. Afield, an attending Board-certified
psychiatrist. On appeal she argued that Dr. Afield’s opinion created a new conflict in the
medical evidence regarding her continuing work-related residuals. Dr. Afield stated that
12

Appellant’s nonwork-related stress included the sudden death of her father within about two months of the
April 5, 1994 work incident, dealing with the substance abuse problems and legal problems of her younger son,
helping to raise the son of her oldest son whose wife was severely mentally ill, moving in with and caring for her
mother who has an inoperable brain tumor and dealing with the long-term mental instability of her younger brother,
a Vietnam veteran.
13

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

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appellant had been treated five years prior to April 5, 1994 by a licensed mental health counselor.
He indicated that she had the symptomology of post-traumatic stress disorder, including
difficulty in close places and avoiding places she needed to be.14 Dr. Afield stated that
appellant’s problems with her abusive brother intensified the reaction which she had from the
work-related incident. He stated that he needed to obtain some psychological testing to
determine whether she could continue to work.
The Board finds that Dr. Afield’s opinion is of limited probative value because it does not
contain adequate medical rationale in support of its conclusions and it is not based on a complete
and accurate factual and medical history.15 Dr. Afield did not adequately explain the basis of his
diagnosis of post-traumatic stress disorder or why he felt this condition continued to be related to
the April 5, 1994 incident. He did not provide any notable discussion of appellant’s nonworkrelated stressors or explain why they would not have been the sole cause of her continuing
problems. In fact, in later reports Dr. Afield emphasized the stress caused by appellant’s problems
with her brother.16
Appellant also submitted a February 20, 2009 report of Dr. Gary K. Arthur, an attending
Board-certified psychiatrist. On appeal appellant argued that Dr. Arthur’s opinion created a new
conflict in the medical evidence. Dr. Arthur noted that appellant reported that she had occasional
intrusive memories of the April 5, 1994 events and that she had minimal stressors not related to
that incident, other than financial stressors. Dr. Arthur indicated that research showed that posttraumatic stress disorder causes neuro-microbiological changes in the brain (some permanent)
which cause patients to have an underlying constant ability to overreact to stressors, particularly
those similar to the original stressor. He concluded that appellant’s post-traumatic stress disorder
was “a neurobiological damage deficiency condition which is never going to be resolved or go
away.”
The Board finds that Dr. Arthur’s report is of limited probative value regarding
appellant’s work-related residuals because it is lacking in adequate medical rationale. Dr. Arthur
did not sufficiently explain why he felt the observed symptoms were still related to the April 5,
1994 incident that occurred almost 15 years earlier. He did not provide a detailed description of
appellant’s nonwork-related stressors or their role in her current emotional condition. Dr. Arthur
suggested that appellant sustained permanent brain damage related to her post-traumatic stress
disorder, but he did not present findings, such as the results of diagnostic testing, to support this
assertion. He attached several articles regarding post-traumatic stress disorder to his report, but
14

Dr. Afield conducted testing on May 16, 2007 which showed that appellant had severe post-traumatic stress
disorder.
15

See William Nimitz, Jr., 30 ECAB 567, 570 (1979).

16

In a January 30, 2007 letter, Dr. Wheaton reiterated his diagnosis of post-traumatic stress disorder due to work
and restated his opinion that appellant was totally disabled. However, as he was on one side of the conflict, his
additional report is essentially duplicative of his stated opinion and is insufficient to give rise to a new conflict. See
Richard O’Brien, 53 ECAB 234 (2001). In a February 5, 2007 letter, Dr. Warren, an attending Board-certified
psychiatrist, indicated that Dr. Delaney’s opinion was disputed by those of several physicians and stated, “It is likely
that her current condition stems from the accepted work-related condition.” He did not provide any explanation for
his opinion and therefore it is of limited probative value.

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such materials are of general application and are not determinative of whether appellant continued
to have work-related residuals.
For these reasons, appellant did not show that she has residuals of her work-related
emotional condition after March 18, 2007 and the Office properly denied her claim.
CONCLUSION
The Board finds that appellant does not have residuals of her work-related emotional
condition after March 18, 2007.
ORDER
IT IS HEREBY ORDERED THAT the May 28, 2009 and July 17, 2008 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: June 18, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Miami, FL, Employer
__________________________________________

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

Docket No. 09-1697
Issued: May 10, 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 June 15, 2009 appellant filed a timely appeal from an April 14, 2009 decision of the
Office of Workers’ Compensation Programs finding that appellant received an overpayment in
the amount of $215,261.91, for which he was with fault. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to review the merits of this case.
ISSUES
The issues are: (1) whether the Office properly found that appellant received an
overpayment in the amount of $215,261.91 due to his receipt compensation for total disability
following a loss of wage-earning capacity determination for the period February 24, 2001
through April 15, 2006; and (2) whether the Office properly found appellant at fault in the
creation of the overpayment.
On appeal, appellant contends that he did not cause the overpayment and should not be
held responsible for the Office’s mistake. He also contends that repayment of the overpayment
would cause him financial problems and that he not be made to pay more than $1,000.00 a
month.

FACTUAL HISTORY
On September 14, 1993 appellant, then a 44-year-old senior customs inspector, filed a
claim for an injury to his back and severe strain. The Office accepted this claim and paid
compensation and medical benefits. Appellant had multiple other claims, including a claim for a
traumatic injury on November 2, 1982 that was accepted for lumbar subluxation, L4, and
herniated nucleus pulposus.
By decision dated September 26, 1997, the Office found that appellant was reemployed
as a customs inspector at the employing establishment and that his actual earnings fairly and
reasonably represented his wage-earning capacity. It set appellant’s compensation rate as
$1,288.36 every four weeks.
Appellant retired from the Federal Government on
November 25, 2006.
On July 21, 2008 the Office made a preliminary determination that appellant was
overpaid in the amount of $227,805.91. It noted that this overpayment occurred because
appellant returned to work as a customs inspector in June 1997, that the Office found that this
position fairly and reasonably represented his wage-earning capacity; that appellant continued to
receive compensation at the reduced rate for approximately four years until his benefits were
temporarily suspended for nonreceipt of the Form CA-132; and that when benefits were
reinstated on March 25, 2001 the total disability rate was utilized until April 15, 2006 thus
causing an overpayment of compensation in this case.1 The Office further found that appellant
was at fault in the creation of the overpayment, as he accepted a payment which he knew or
should have known to be incorrect. It forwarded to appellant an overpayment recovery
questionnaire.
In a letter dated August 21, 2008, appellant responded to the Office’s preliminary
overpayment determination. He indicated that he was under the assumption that he was
receiving a schedule award that was to be paid over four to five years. Appellant further noted
that he lost his home in 2007 to foreclosure due to higher taxes and insurance payments, that his
on-the-job injuries have become worse and that he has only been able to obtain a part-time work
position paying $8.00 per hour for approximately 30 hours a week with no benefits; that his onthe-job injuries are causing the loss of feeling in his lower extremities; and that he now has two
parents in nursing homes which causes him to miss work on a regular basis to provide support,
transportation and care for them. He also contends that he should not be held accountable for the
Office’s mistake as he followed all the required filings of salary information each year.

1

The Office found that for the period March 25, 2001 through April 15, 2006 appellant was paid benefits for total
disability in the amount of $323,360.51. It noted that for that time period appellant was entitled to receive
compensation in the amount of $95,554.60. The difference in these amounts, $227,805.91, represented the amount
of the overpayment.

2

Appellant also completed an overpayment recovery questionnaire.2
prerecoupment hearing.

He requested a

At the hearing held on February 10, 2009, appellant testified that he retired from the
Federal Government on November 25, 2006. He disagreed that an overpayment occurred.
Appellant stated that he filed a claim for a schedule award and was told by the Office that he
would receive a schedule award over a period of four or five years. He testified that three
hurricanes hit his house in 1975 and that this destroyed his paperwork. With regard to his
financial situation, appellant noted that his current job just cut 40 percent of his wages this year,
so he is projecting making $8,000.00 in 2009. He noted that his wife was expecting to be laid off
from her job because the state of Florida is going to lay off another 4,000 people this year, and
that when this occurs, they will be living on $326.00 every two weeks. The hearing
representative reviewed appellant’s overpayment questionnaire.
By decision dated April 14, 2009, the hearing representative modified the Office’s
decision in that he reduced the amount of the overpayment to $215,261.91.3 The hearing
representative made the overpayment determination final, found appellant not without fault in
creating the overpayment, and ordered that repayment be repaid at the rate of $1,200.00 per
month from his government retirement.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of the Federal Employees’ Compensation Act provides that the United
States shall pay compensation for the disability or death of an employee resulting from personal
injury sustained while in the performance of duty.4 When an overpayment has been made to an
individual 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 the individual is
entitled.5
2

In the overpayment recovery questionnaire, appellant listed his income, from his job and his wife’s, as
$2,800.00 per month. He listed income from Civil Service Retirement Annuity (CSRA) as $3,600.00, for a total
income of $6,400.00. Appellant listed his expenses as $2,200.00 for rent, $800.00 for food, $100.00 for clothing
and $900.00 for utilities. He also noted other expenses as $1,700.00. Appellant noted that he made monthly
payments of $500.00 to his credit union and $450.00 per month on his credit cards. He listed his total monthly
expenses as $4,950.00.
3

The hearing representative reduced the overpayment from $227,805.91 to $215,261.91. The hearing
representative found that the Office failed to consider appellant’s entitlement to compensation for his loss of wageearning capacity for the period April 16 through November 25, 2006 (the date of his retirement). The hearing
representative noted that appellant was entitled to $12,488.00 during this period for his loss in wage-earning
capacity, thus reducing the overpayment. (The record contains a supplemental roll payment worksheet indicating
that appellant should have been paid $12,544.00 for the period April 16 through November 25, 2006. The record
also contains a revised worksheet for the period April 16 through November 24, 2006 indicating compensation due
of $12,488.00. The amount was modified for the reason that appellant was entitled to loss of wage-earning capacity
from the date he was taken off rolls due to overpayment, April 16, 2006, to the date before he retired,
November 24, 2006.)
4

5 U.S.C. § 8102(a).

5

Id. at § 8129(a).

3

ANALYSIS -- ISSUE 1
The Board finds that the Office properly determined that appellant received an
overpayment in the amount of $215,261.91 for the period March 10, 2001 to April 15, 2006.
By decision dated September 26, 1997, the Office determined that appellant had returned
to work as a customs inspector with the employing establishment; that this position represented
his wage-earning capacity; and that appellant was to be paid compensation at the new rate of
$1,288.36 every 28 days. It suspended this compensation effective March 9, 2001 as appellant
failed to submit a Form CA-1032. This form was submitted and appellant’s compensation was
restored, however, the Office improperly restored appellant’s compensation to the full total
disability rate, and not to his loss of wage-earning capacity. The Office provided calculations
evincing that appellant was paid total disability compensation in the amount of $323,360.51 for
the period March 25, 2001 through April 15, 2006. However, appellant was only entitled to
compensation, based on his wage-earning capacity for this period, of $95,554.60. Accordingly,
this resulted in an overpayment of $227.805.91 for this time period. When the overpayment was
evaluated by the hearing representative, she determined that the Office failed to consider
appellant’s entitlement to compensation based on his loss of wage-earning capacity for the
period April 16 through November 25, 2006, the date appellant elected to begin receiving
retirement benefits. The hearing representative found that when the amount appellant should
have received for this time period, $12,488.00 was subtracted from the prior overpayment
amount of $227,805.91, the new amount of the overpayment was $215,261.91. The Board notes
that although the hearing representative stated that she subtracted $12,488.00 (the amount of
compensation for the period April 16 through November 24, 2006, the date before appellant
began retirement benefits), actually the hearing representative erroneously subtracted $12,544.00
(the amount of compensation for the period April 16 through November 25, 2006). When the
proper amount, $12,488.00 is subtracted from $227,805.91, the correct total for the overpayment
is $215,317.91. Accordingly, the Board will modify the overpayment decision to find an
overpayment in the amount of $215,317.91.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act provides that an overpayment in compensation shall be recovered
by the Office unless incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of the Act or would be against equity and
good conscience.6
Section 10.433(a) of the Office’s regulations provide that the Office:
“[M]ay consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of
compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she receives from [the Office] are proper. The recipient must
show in good faith and exercise a high degree of care in reporting events which
6

5 U.S.C. § 8129. See Linda E. Padilla, 45 ECAB 768 (1994).

4

may affect entitlement to the amount of benefits. A recipient who has done any of
the following will be found to be at fault in creating an overpayment:
(1) Made an incorrect statement as to a material fact which he or she
knew or should have known to be incorrect; or
(2) Failed to provide information which he or she knew or should have
known to be material; or
(3) Accepted a payment which he or she knew or should have known to
be incorrect. (This provision applies only to the overpaid individual.)”7
To determine if an individual was at fault with respect to the creation of an overpayment,
the Office 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.8
ANALYSIS -- ISSUE 2
The Board finds that appellant accepted payments from the Office that he should have
known to be incorrect. For the period February 25 through March 24, 2001, appellant received
compensation totaling $1,368.64. For the period March 25 through April 21, 2001, appellant
received $4,633.00, an increase of $3,264.36 every 28 days. These increased payments
continued through April 15, 2006. Appellant should have noticed the increase in his
compensation benefits and been aware that he was not entitled to the greater amount. The Board
is not persuaded by appellant’s argument that he thought that these payments were for a schedule
award, as there is no evidence in the record that appellant received a schedule award nor is there
any evidence that appellant filed a claim for a schedule award.
Therefore, the Board finds that the Office properly determined that he was at fault in
creating the overpayment. The fact that the Office may have erred in issuing the payments does
not mitigate this finding. Overpayments resulting from the negligence of the Office, does not
excuse the employee from accepting payment which the employee knew or should have been
expected to know that he was not entitled to receive.9
With respect to recovery of the overpayment, the Board notes that its jurisdiction is
limited to review of those cases where the Office seeks recovery from continuing compensation
benefits under the Act.10 As appellant was not in receipt of compensation benefits at the time of
the Office’s final decision, the Board lacks jurisdiction to review recovery of the overpayment.

7

20 C.F.R. § 10.433. See Sinclair L. Taylor, 52 ECAB 227 (2001). See also 20 C.F.R. § 10.430.

8

20 C.F.R. § 10.433(b). See also Duane C. Rawlings, 55 ECAB 366 (2004).

9

See J.K., 60 ECAB ___ (Docket No. 08-1761, issued January 8, 2008).

10

See Terry A. Keister, 56 ECAB 559 (2005).

5

CONCLUSION
The Board finds that appellant received an overpayment in the amount of $215,317.91.
The Board finds that the Office properly denied waiver of the recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 14, 2009 is affirmed, as modified.
Issued: May 10, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Albuquerque, NM, Employer
__________________________________________

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Appearances:
Gordon Reiselt, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1110
Issued: February 19, 2010

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 18, 2009 appellant, through counsel, filed a timely appeal from the June 13,
2008 and January 7, 2009 merit decisions of the Office of Workers’ Compensation Programs
terminating her compensation benefits for her cervical and lumbar conditions. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s
compensation benefits effective July 6, 2008.
On appeal, appellant, through her attorney, contends that the Office did not meet its
burden of proof to establish that she has no residuals of the accepted conditions.
FACTUAL HISTORY
This case has previously been before the Board. In a July 15, 2004 decision, the Board
remanded the case to the Office to resolve a conflict in medical opinion on whether appellant

was totally disabled as a result of her accepted cervical radiculopathy and cervical strain arising
from an April 25, 2002 work injury. The facts are set forth in the prior decision and are
incorporated by reference.1
In an October 26, 2004 decision, the Office accepted appellant’s claim for cervical strain
with radiculopathy, displaced herniated lumbar and cervical discs and dysthymic disorder. She
has preexisting conditions of arthritis, neck and low back injuries. The Office paid compensation
effective August 5, 2002 for total disability.
Appellant received treatment for her cervical conduction from Dr. Thomas Whalen, a
Board-certified internist who performed C4-5 radiofrequency rhizotomies on October 31, 2005
and medial C4-6 branch blocks on January 9 and March 1, 2006. In a July 11, 2006 report,
Dr. Whalen indicated that appellant continued to have neck pain with cervical facet arthopathy.
He also noted low back pain with primary pain generator being lumbar facet arthopathy and/or
sacroiliac joint arthropathy. Appellant also had fibromyalgia and depression.
On October 9, 2006 the Office referred appellant to Dr. Randy Pollet, a Board-certified
orthopedic surgeon, for a second opinion. Dr. Pollet advised that in all medical probability the
effects of the injury of April 25, 2002 had resolved. He noted that appellant sustained a cervical
and lumbar sprain and strain and a slight aggravation of her underlying osteoarthritis which
responded to conservative management. On examination, the residuals from the accepted injury
had resolved and appellant was able to return to her regular duty as a nurse. Dr. Pollet noted that
appellant should be encouraged to discontinue most of her medication and to return to full duty,
working eight hours a day.
In a November 6, 2006 report, Dr. Whalen noted neck pain with cervical degenerative
disc disease and degenerative joint disease. He also found low back pain with degenerative joint
disease and degenerative disc disease.
By letter dated December 7, 2006, the Office asked Dr. Whalen to comment on the report
of Dr. Pollet. On December 15, 2005 Dr. Whalen stated that appellant sustained a C5-6 disc
herniation and a C3-4 disc protrusion as a result of the April 25, 2002 injury.2 He found within a
reasonable degree of medical probability that appellant also sustained a L3-4 disc herniation and
annular tear as a result of the injury. Dr. Whalen advised that she had not responded to
conservative management and remained totally disabled.
The Office found a conflict in medical opinion between Dr. Whalen and Dr. Pollet as to
whether residuals due to the April 25, 2002 injury had resolved or required future medical
treatment. On December 5, 2007 the Office referred appellant to Dr. James Hood, a Board1

Docket No. 04-572 (issued July 15, 2004).

2

Dr. Whalen noted that Dr. Pollet stated that there was preexisting cervical and lumbar degenerative joint and
disc disease/osteoporosis. He noted that all of the evidence prior to April 25, 2002 did show degenerative joint
disease, but there was absolutely no documentation of lumbar degenerative joint disease, lumbar disc disease,
cervical disc disease or osteoporosis. Dr. Whalen further noted that Dr. Pollet’s contention that appellant had
preexisting cervical and lumbar degenerative joint and disc disease was contradicted by the Office’s previous
findings. He also questioned Dr. Pollet’s review of magnetic resonance imaging (MRI) scans.

2

certified orthopedic surgeon, for an impartial medical examination. A copy of this letter was
sent to appellant’s attorney. By letter dated December 17, 2007, appellant’s attorney noted that
the distance from appellant’s home to the office of the impartial medical examiner was 281.46
miles and the approximately driving time was four hours. He requested travel arrangements be
made to accommodate appellant’s need to travel in a supine position for a four- to five-hour road
trip. The Office advised counsel that appellant should keep receipts for reimbursement for
travel. It would authorize travel by land and an overnight stay or air travel, whichever was
cheaper.
In a January 20, 2008 medical report, Dr. Hood advised that there was no objective
evidence to establish residuals of appellant’s April 25, 2002 work injury were currently active or
disabling. He noted a normal neurological examination in both the upper and lower extremities,
combined with the MRI scan, established that from an objective standpoint appellant was no
longer disabled. Dr. Hood noted mild degenerative changes in appellant’s cervical and lumbar
spine and advised that her lumbar condition was worsened by her gross obesity. Even though
appellant had active degenerative disc disease, this was not related to the effects of the work
event of 2002. Dr. Hood opined that appellant’s treatment had been excessive and prolonged in
relation to the effects of the work event. Moreover, any effects of the April 25, 2002 work injury
did not preclude her from returning to work. Dr. Hood advised that appellant’s vast
psychological overlay and symptom magnification, together with her addiction to prescription
medications, obesity and perceived medical problems, precluded her from her past employment
as a nurse. He agreed with Dr. Pollet that the residuals of the work event of April 25, 2002 had
fully resolved.
On April 24, 2008 the Office issued a notice of proposed termination of appellant’s
wage-loss compensation. It noted that the proposed termination did not include appellant’s
medical benefits, which would remain open if treatment was still needed for her accepted
condition.
On June 13, 2008 the Office terminated appellant’s wage-loss compensation effective
July 6, 2008.
On June 17, 2008 appellant requested a hearing. At the telephonic hearing held on
October 15, 2008, appellant’s attorney contended that the June 13, 2008 decision terminating
benefits was not supported by the medical evidence. Counsel questioned whether the impartial
medical examiner was properly appointed, noting the distance appellant had to travel and
whether the Office had bypassed other eligible physicians.
In a May 23, 2008 report, Dr. Gerald S. Fredman, a Board-certified psychiatrist, reviewed
the report of Dr. Hood. He advised that his treatment of appellant included a combination of
supportive psychotherapy and usage of psychotropic medications. Dr. Fredman noted that
appellant’s diagnosis was dysthymic disorder. Appellant continued to have problems with low
energy level and motivation and ongoing problems falling and staying asleep. Dr. Fredman
opined that, if appellant had no orthopedic problems, her psychiatric problems still precluded her
from returning to work as a nurse due to chronic depression.

3

In a January 7, 2009 decision, an Office hearing representative found that appellant no
longer had any cervical or lumbar condition causally related to her accepted injury. Further
medical treatment for these conditions was denied. However, the June 13, 2008 decision was
reversed with regard to appellant’s dysthymic disorder. The Office was directed to reinstate
appellant’s compensation benefits related to this condition.
LEGAL PRECEDENT
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.3 It may not terminate compensation without establishing
that disability ceased or that it was no longer related to the employment.4
Under the Federal Employees’ Compensation Act, when the employment factors cause an
aggravation of an underlying condition, the employee is entitled to compensation for the periods
of disability related to the aggravation. When the aggravation is temporary and leaves no
permanent residuals, compensation is not payable for periods after the aggravation has ceased,
even if the employee is medically disqualified from continuing employment due to the
underlying condition.5
The Office’s burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.6 The right to medical
benefits for an accepted condition is not limited to the period of entitlement to compensation for
disability. To terminate authorization for medical treatment, the Office must establish that an
employee no longer has residuals of an employment-related condition which require further
medical treatment.7
Section 8123 of the Act provides that if there is 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.8 When there exist opposing
medical reports of virtually equal weight and rationale and the case is referred to an impartial
medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if
sufficiently well rationalized and based upon a proper factual background, must be given special
weight.9

3

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Fermin G. Olascoaga, 13 ECAB 102,
104 (1961).
4

J.M., 58 ECAB 478 (2007); Anna M. Blaine, 26 ECAB 351 (1975).

5

See Raymond W. Behrens, 50 ECAB 221 (1999).

6

T.P., 58 ECAB 524 (2007); Larry Warner, 43 ECAB 1027 (1992).

7

T.P., supra note 6; Furman G. Peake, 41 ECAB 361, 364 (1990).

8

5 U.S.C. § 8123(a).

9

James F. Weikel, 54 ECAB 660 (2003); Beverly Grimes, 54 ECAB 543 (2003).

4

ANALYSIS
The Office accepted appellant’s claim for cervical strain with radiculopathy, displaced
herniated lumbar and cervical discs and dysthmic disorder. A conflict arose between appellant’s
treating physician, Dr. Whalen, and the second opinion physician, Dr. Pollet as to whether
appellant had continuing residuals and disability from her accepted conditions. The Office
referred appellant to Dr. Hood for an impartial medical examination. Dr. Hood found that
appellant was no longer disabled due to her orthopedic conditions. He based this finding on a
normal neurological examination of both the upper and lower extremities combined with the
results of the MRI scan. Even though appellant had active degenerative disc disease, this was
not related to the effects of the April 25, 2002 work injury. Dr. Hood found that the residuals of
the accepted injury had resolved. The opinion of the impartial medical examiner, Dr. Hood, is
well rationalized and entitled to decisive weight.10 Accordingly, the Office properly determined
that appellant had no further lumbar or cervical disability as a result of her work injury.
Appellant’s attorney contended that the Office did not provide sufficient proof or
documentation that Dr. Hood was properly selected as an impartial medical examiner. However,
counsel did not object to the selection at the time the appointment was made or present any
evidence to support his allegation that the Office did not follow its procedures.11 The Office
procedures provide that the selection of referee physicians are made by a strict rotational system
using appropriate medical directories and specifically states that the PDS should be used for this
purpose. The procedures explain that the PDS is a set of stand-alone software programs
designed to support the scheduling of second opinion and referee examinations and states that the
database of physicians for referee examinations is obtained from the MARQUIS Director of
Medical Specialists.12 Appellant’s attorney contended that no bypass information was shown.
However, other than questioning the bypass procedures at the hearing, appellant presented no
substantial evidence that the Office failed to follow the bypass procedures. Although appellant’s
attorney noted that the Office of the impartial medical examiner was approximately 281 miles
from appellant’s residence, the Office indicated that it would reimburse travel expenses,
including the cost of an overnight stay, if necessary. A simple preference for examination in a
particular location is not considered a valid reason for objecting to an impartial medical
examiner.13 Accordingly, the Board finds that appellant did not present any evidence
establishing that the impartial selection was improper.

10

Darlene Kennedy, 57 ECAB 414 (2006).

11

See G.T., 59 ECAB __ (Docket No. 07-1345, issued April 11, 2008) (a claimant must timely raise any
objection to the selected physician in order to participate in the process in accordance with the Office procedures
and must provide valid reasons).
12

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.7 (May 2003);
Albert Cremato, 50 ECAB 550 (1999).
13

See id. at Chapter 3.500.4(b)(4)(d) (May 2003).

5

CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits for her lumbar and cervical conditions effective July 6, 2008.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 7, 2009 and June 13, 2008 are affirmed.
Issued: February 19, 2010
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.V., Appellant
and
DEPARTMENT OF AGRICULTURE, ANIMAL
& PLANT HEALTH INSPECTION SERVICE,
Fort Pierce, FL, Employer
__________________________________________

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Appearances:
Ronald Webster, Esq., for the appellant
Office of Solicitor, for the Director

Docket Nos. 14-624 &
14-1088
Issued: August 8, 2014

Case Submitted on the Record

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

JURISDICTION
On January 28, 2014 appellant, through his attorney, filed a timely appeal from a
November 26, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
This appeal was docketed as No. 14-624. On April 10, 2014 appellant filed a timely appeal of a
February 6, 2014 OWCP merit decision, docketed as No. 14-1088. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established any employment-related disability during
the period December 21, 2012 to January 11, 2013.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 13, 2012 appellant, then a 60-year-old plant protection technician, filed a
traumatic injury claim (Form CA-1) alleging that on February 29, 2012 he sustained injuries in a
motor vehicle accident. The claim form states that he “swerved to avoid animal and ran into
canal.” In a March 1, 2012 letter, the employing establishment advised that, as of June 24, 2011,
appellant had been working under a one-year limited appointment. Appellant was limited to 180
days of work from June 24, 2011 to June 23, 2012 and, when injured, he had already worked 178
days, with his last scheduled day as March 2, 2012. He would then be in a nonpay status until
June 23, 2012, when he would either be rehired under the same one-year appointment, rehired
under a new appointment or terminated.
On April 17, 2012 OWCP accepted the claim for lumbosacral spondylosis without
myelopathy, lumbar spondylosis with myelopathy, herniated discs at C4-5, L4-5 and L5-S1,
cervical and lumbar sprains. The record indicates that appellant received compensation from
April 16 to October 20, 2012.
In a work capacity evaluation (Form OWCP-5c) dated September 17, 2012, Dr. Daniel
Husted, a Board-certified orthopedic surgeon, advised that appellant could work with a 30-pound
lifting restriction. By letter dated October 1, 2012, the employing establishment offered
appellant a 60-day job as a plant protection technician commencing October 22, 2012. It stated
that the job was set up to accommodate his 30-pound lifting restriction. Appellant accepted the
position and worked from October 22 to December 20, 2012.
On January 8, 2013 appellant filed a claim for compensation (Form CA-7) from
December 21 to 28, 2012. On February 1, 2013 he filed a Form CA-7 for the period
December 31, 2012 to January 11, 2013.
In a report dated January 30, 2013, Dr. Husted stated that appellant sustained work
injuries on February 29, 2012 with an aggravation sustained at work on October 24, 2012.2 He
agreed to allow appellant to work a 60-day, relatively light job with no lifting over 30 pounds
and allowing him to stretch every 45 minutes. On November 5, 2012 appellant had worsened
symptoms and needed a functional capacity evaluation and an epidural injection. He stated that a
magnetic resonance imaging (MRI) scan revealed a compression fracture and appellant should
not be involved in prolonged sitting, standing or bending. Dr. Husted stated that appellant
“certainly continues to be affected by this original diagnosis” and should be treated for those
conditions in the future and the October 24, 2012 incident was the type of incident that
aggravates an orthopedic condition.
In a report dated February 22, 2013, Dr. Husted provided results on examination and
stated that appellant was status post February 29, 2012 work injury. He noted an MRI scan
showed an L1 inferior endplate fracture, which was new and constituted a new injury.
By decision dated March 20, 2013, OWCP denied appellant’s claim for compensation
from December 21 to 28, 2012. It found that he worked in a temporary position when injured,
2

Claim File No. xxxxxx766.

2

was brought back for a 60-day temporary position and was not terminated due to injury but
expiration of the temporary job.
Appellant requested a hearing before an OWCP hearing representative on April 9, 2013.
In a report dated April 10, 2013, Dr. Husted provided results on examination. He noted
that appellant continued to have residual low back pain, that was a combination of both the
compression fracture and stenosis and resulting in partial disability.
By decision dated May 3, 2013, OWCP denied the claim for compensation from
December 31, 2012 to January 11, 2013. It again found appellant’s work stoppage was not the
result of the employment injury but termination of a temporary job.
On May 21, 2012 appellant requested a hearing on this decision.
A hearing was held on August 13, 2013. Counsel argued that appellant was provided a
light-duty job that was withdrawn and he was entitled to compensation.
In a letter dated September 13, 2013, the employing establishment stated that appellant
had been on a term appointment that expired on June 24, 2011. Appellant was then on a
temporary one-year appointment, limited to 180 workdays, that would have ended regardless of a
work injury. The employing establishment stated the 60-day job was also a temporary job that
ended due to expiration of its term.
By decision dated November 26, 2013, an OWCP hearing representative affirmed the
March 20, 2013. He found that appellant’s work stoppage was due to the termination of a
temporary appointment rather than a medical disability.
A hearing was held on October 30, 2013 with respect to the May 3, 2013 decision.
By decision dated February 6, 2014, an OWCP hearing representative affirmed the
May 3, 2013 decision. She found that appellant did not submit sufficient medical evidence to
establish that he sustained any employment-related disability.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden to establish the essential
elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.4 The term disability is

3

5 U.S.C. §§ 8101-8193.

4

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

3

defined as the incapacity because of an employment injury to earn the wages the employee was
receiving at the time of the injury, i.e., a physical impairment resulting in loss of wage-earning
capacity.5
A claimant that has returned to a light-duty position may establish a recurrence of an
employment-related disability by showing either a change in the nature and extent of the
injury-related condition or a change in the nature and extent of the light-duty requirements.6 The
Board has recognized that for a permanent employee the withdrawal of a light-duty job may
establish a change in the nature and extent of the light-duty requirements.7 To establish a change
in the nature and extent of the injury-related condition, there must be probative medical evidence
of record. The evidence must include a medical opinion, based on a complete and accurate
factual and medical history and supported by sound medical reasoning, that the disabling
condition is causally related to employment factors.8
ANALYSIS
The record reflects that appellant was originally hired on a term appointment that expired
on June 24, 2011. Appellant was rehired on a one-year, limited appointment not to exceed 180
workdays. This appointment would expire on June 23, 2012. At the time of injury on
February 29, 2012, appellant was a temporary employee on a limited one-year contract. As of
October 22, 2012, he worked for 60 days on a temporary light-duty position. The position
expired and appellant filed claims for compensation commencing December 21, 2012.
There are circumstances where a permanent employee may establish a recurrence of
disability when a light-duty job is withdrawn and no longer available. When the employing
establishment has no modified job within the employment-related medical restrictions, then the
permanent employee may establish an employment-related disability. The present case involves
a temporary employee returning to a temporary light-duty position. As the Board noted in M.S.,9
when a temporary employee’s appointment expires, this does not itself establish a recurrence of
disability. Appellant was a temporary employee when injured and returned to a temporary
light-duty position. The expiration of the temporary light-duty job, due to the terms of the
appointment, does not itself establish any employment-related disability.10

5

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
6

Albert C. Brown, 52 ECAB 152 (2000); Mary A. Howard, 45 ECAB 646 (1994); Terry R. Hedman, 38 ECAB
222 (1986).
7

Jackie B. Wilson, 39 ECAB 915 (1988).

8

Maurissa Mack 50 ECAB 498 (1999).

9

Docket No. 11-1184 (issued December 12, 2011). In this case the employee was a temporary employee who
sustained an employment injury, returned to a light-duty position that expired at the end of the term appointment.
The Board found this did not constitute a withdrawal of light duty establishing a recurrence of disability.
10

See also Steven A. Anderson, 53 ECAB 367 (2002); Shelly A. Paolinetti, 52 ECAB 391 (2001).

4

The issue is whether appellant submitted sufficient medical evidence to establish
disability for the claimed period causally related to the February 29, 2012 injury. In this regard,
the record contains reports from Dr. Husted regarding continuing treatment. Dr. Husted did not
specifically discuss the claimed period of disability of December 21, 2012 through
January 11, 2013. In addition, he noted that appellant sustained a new work injury on
October 24, 2012 and reported a compression fracture. This claim is not before the Board on the
current appeal. Dr. Husted refers generally to partial disability in his April 10, 2013 report due
to compression fracture and stenosis. Neither of those conditions has been accepted pursuant to
the current claim. As noted, a medical report must be based on a complete background and the
opinion supported by sound medical reasoning.
On appeal, appellant argues that the evidence shows that he had two serious accidents,
“both of which were limiting and both of which require the same orthopedic treatment.” He
argues that there was no basis for the denial of compensation following the end of his temporary
60-day position, which was not the date-of-injury position. The Board finds that appellant did
not establish disability commencing December 21, 2012 causally related to the
February 29, 2012 employment injury. The termination of appellant’s temporary employment
does not itself establish entitlement to compensation and the medical evidence of record is not
sufficient to establish causal relationship between any disability beginning December 21, 2012
and the February 29, 2012 employment injuries.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established an employment-related disability
during the period December 21, 2012 to January 11, 2013.

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 6, 2014 and November 26, 2013 are affirmed.
Issued: August 8, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


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

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

Docket No. 11-1202
Issued: August 18, 2011

Case Submitted on the Record

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

JURISDICTION
On April 19, 2011 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ (OWCP) decision dated February 18, 2011 finding that she abandoned
her request for a hearing.1 Pursuant to the Federal Employees’ Compensation Act (FECA)2 and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the nonmerit issue of the case.
ISSUE
The issue is whether OWCP properly determined that appellant abandoned her request
for a hearing.

1

The Board notes that on April 8, 2010 OWCP issued a decision granting appellant a schedule award. Appellant
did not appeal this decision to the Board.
2

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On April 19, 2011 appellant, then a 49-year-old temporary causal mail handler, filed a
traumatic injury claim alleging that on July 4, 2010 she injured her back while pushing heavy
containers while performing her mail handler duties. She stopped work on July 22, 2010.
Appellant was treated by Dr. Stephen Dietrich, Board-certified in occupational medicine,
on July 22, 2010 for back pain and diagnosed sprain/strain of the thoracic back. She reported
injuring her back while at work. Dr. Dietrich recommended physical therapy and noted that
appellant could return to light-duty work on July 26, 2010.
In a letter dated July 29, 2010, OWCP advised appellant of the type of factual and
medical evidence needed to establish her claim. Appellant submitted additional evidence.
In an August 31, 2010 decision, OWCP denied appellant’s claim on the grounds that
medical evidence was insufficient to establish that her claimed conditions were caused by her
employment. It advised that medical treatment was not authorized and that any prior
authorization was terminated.
On September 13, 2010 appellant requested a videoconference hearing. On December 9,
2010 OWCP advised her that a telephonic hearing would be held January 14, 2011 at 12:00 p.m.,
eastern time. It instructed appellant to call the provided toll-free number a few minutes before
the hearing time and enter the pass code to gain access to the conference call. OWCP mailed the
December 9, 2010 letter to her address of record.
On December 13, 2010 appellant telephoned OWCP in response to the hearing notice and
indicated that she did not request a hearing. She attempted to call the telephone number and
code listed on the notice; however, she could not reach OWCP. OWCP’s representative
explained the process for the telephone hearing. Appellant requested a copy of the hearing
request for her review. OWCP informed her that she could cancel the hearing and instructed her
to send a written statement to OWCP. Appellant indicated that she would review the document
and decide whether she would keep the hearing.
By decision dated February 18, 2011, OWCP found that appellant had abandoned her
request for a hearing. It found that she received a written notice of the hearing 30 days before
the scheduled hearing but did not appear or explain her absence either before or after the
scheduled hearing.
LEGAL PRECEDENT
Under FECA and its implementing regulations, a claimant who has received a final
adverse decision by OWCP is entitled to receive a hearing upon writing to the address specified
in the decision within 30 days of the date of the decision for which a hearing is sought.3 Unless
otherwise directed in writing by the claimant, OWCP’s hearing representative will mail a notice
3

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).

2

of the time and place of the hearing to the claimant and any representative at least 30 days before
the scheduled date.4
The authority governing the abandonment of hearings rests with OWCP’s procedure
manual, which provides that a hearing can be abandoned only under very limited circumstances.
All three of the following conditions must be present: the claimant has not requested a
postponement; the claimant has failed to appear at a scheduled hearing; and the claimant has
failed to provide any notification for such failure within 10 days of the scheduled date of the
hearing. Under these circumstances, the Branch of Hearings and Review will issue a formal
decision finding that the claimant has abandoned her request for a hearing and return the case to
the district Office.5
ANALYSIS
By decision dated August 31, 2010, OWCP denied appellant’s claim for a traumatic
injury. Appellant timely requested an oral hearing. In a December 9, 2010 letter, it notified her
that a telephonic hearing was scheduled for January 14, 2011 at 12:00 p.m. eastern time. OWCP
instructed appellant to telephone a toll-free number and enter a pass code to connect with the
hearing representative. Appellant did not telephone at the appointed time. She did not request a
postponement of the hearing or explain her failure to appear at the hearing within 10 days of the
scheduled hearing date of January 14, 2011. The Board therefore finds that appellant abandoned
his request for a hearing.
On appeal appellant asserted that she was injured at work and OWCP improperly denied
her claim. She indicated that she was not treated fairly and has not seen a physician in over a
year for her injury. The Board notes, however, that it only has jurisdiction over whether the
Office properly determined that appellant abandoned her request for a hearing. As explained,
appellant failed to request a postponement; failed to appear at a scheduled hearing; and failed to
provide any notification for such failure within 10 days of the scheduled date and therefore
abandoned her request for an oral hearing.6
CONCLUSION
The Board finds that appellant abandoned her request for an oral hearing.

4

20 C.F.R. § 10.617(b).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(e) (January 1999). See also G.J., 58 ECAB 651 (2007).
6

Id.

3

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

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.T., Appellant
and
U.S. POSTAL SERVICE, ARLINGTON POST
OFFICE, Arlington, MA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
John L. DeGeneres, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0169
Issued: October 14, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On November 16, 2020 appellant, through counsel, filed a timely appeal from a June 22,
2020 merit decision and an October 30, 2020 nonmerit decision of the Office of Workers’
Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act2
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.

1

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

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish greater than
31 percent permanent impairment of the left lower extremity and 63 percent permanent impairment
of the right lower extremity, for which he received schedule award compensation; and (2) whether
OWCP properly denied appellant’s request for reconsideration of the merits of his claim, pursuant
to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On March 20, 2012 appellant, then a 61-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he sustained a permanent acceleration of osteoarthritis of
both knees causally related to factors of his federal employment. He indicated that he had become
aware of his condition and its relationship to his employment on January 12, 2012. OWCP
accepted the clam for an aggravation of preexisting osteoarthritis of the bilateral knees.
On January 13, 2010 Dr. David Prybyla, a Board-certified orthopedic surgeon, performed
a left partial knee replacement and a right total knee arthroplasty. OWCP subsequently authorized
the surgery.3
In an impairment evaluation dated January 12, 2012, Dr. David C. Morley, Jr., a Boardcertified orthopedic surgeon, diagnosed employment-related advanced knee arthritis. Referencing
the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides),4 he identified the class of diagnosis (CDX) as a class 4 total knee
replacement according to Table 16-3 on page 511. Dr. Morley found that a grade modifier for
physical examination (GMPE) was not applicable as it was used to identify the class and a grade
modifier for clinical studies (GMCS) was not applicable as it was used to identify the diagnosis.
He found a grade modifier for functional history (GMFH) of three based on appellant’s response
to the lower limb questionnaire, but a grade modifier of zero as appellant had no gait derangement.
As the numbers differed by more than two, Dr. Morley excluded the GMFH as it was not reliable.
He found 67 percent permanent impairment for each lower extremity.
On December 18, 2012 OWCP referred appellant to Dr. Stanley Hom, a Board-certified
orthopedic surgeon, for a second opinion examination.
In a supplemental report dated January 8, 2013, Dr. Morley opined that he should not have
excluded a GMFH from his calculations, noting that the A.M.A., Guides at provided that the
highest modifier of each component in determining the grade modifier should be used. He applied
the net adjustment formula and found no change from the default impairment rating of 67 percent
permanent impairment of each lower extremity.

3

On September 2, 2012 Dr. David K. Krohn, a Board-certified internist serving as a district medical adviser
(DMA), opined that the knee replacements were medically necessary and causally related to appellant’s employment.
4

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

2

In a January 14, 2013 report, Dr. Hom diagnosed bilateral degenerative joint disease of the
knees status post left partial knee replacement and right total knee replacement. For the right knee,
he identified the CDX as a class 3 total knee replacement with a fair result. Dr. Hom applied a
GMFH of one due to appellant’s gait disturbance, a GMPE of one based on his range of motion
(ROM), and found that a GMCS was not applicable. He found 31 percent permanent impairment
of the right knee. For the left knee, Dr. Hom identified the CDX as a class 2 total knee replacement.
He found a GMFH, GMCS, and GMPE of zero, which equaled 21 percent left lower extremity
impairment.
On February 22, 2013 appellant retired from employment.
OWCP determined that a conflict existed between Dr. Morley and Dr. Hom regarding the
extent of appellant’s permanent impairment of the lower extremities. It referred appellant to
Dr. Richard W. Warnock, a Board-certified orthopedic surgeon, for an impartial medical
examination.
In a report dated September 9, 2013, Dr. Warnock diagnosed status post right total knee
replacement and status post left unicondylar knee replacement. He concurred with Dr. Hom’s
finding of 31 percent right lower extremity impairment and 21 percent left lower extremity
impairment.
On November 5, 2013 OWCP requested that Dr. Warnock clarify his impairment rating.
On January 7, 2015 Dr. Slutsky, serving as a DMA for OWCP opined that appellant had
59 percent permanent impairment of the right lower extremity and 31 percent permanent
impairment of the left lower extremity.
By decision dated February 6, 2015, OWCP granted appellant a schedule award for 59
percent permanent impairment of the right lower extremity and 31 percent permanent impairment
of the left lower extremity. The period of the award ran for 259.2 weeks from February 22, 2013
to February 10, 2018. OWCP used an effective pay rate date of February 22, 2013, the date that
appellant had retired from the employing establishment.
On February 25, 2015 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review.
Following a preliminary review, by decision dated May 8, 2015, OWCP’s hearing
representative vacated the February 6, 2015 decision. She noted that Dr. Warnock had not
responded to OWCP’s November 5, 2013 report for clarification and instructed OWCP to refer
appellant to a new impartial medical examiner (IME). The hearing representative further found
that OWCP should verify that appellant resumed his usual employment after appellant’s 2010
surgery and that he had continued to be exposed to work factors identified as causing his condition
until his retirement.
On January 26, 2016 OWCP referred appellant to Dr. Neal Rockowitz, a Board-certified
orthopedic surgeon, for an impartial medical examination.

3

In a report dated February 11, 2016, Dr. Rockowitz opined that appellant had 37 percent
permanent impairment of the right lower extremity and 21 percent permanent impairment of the
left lower extremity. In a supplemental report November 5, 2016, he found 31 percent permanent
impairment of the right lower extremity and 21 percent permanent impairment of the left lower
extremity.
On March 15, 2018 Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving as
a DMA, found that appellant had 34 percent permanent impairment of the right lower extremity
and 25 percent permanent impairment of the left lower extremity.
On July 26, 2018 the employing establishment advised that appellant had returned to his
usual employment after his 2010 surgery and provided his pay rate effective February 23, 2013 as
$1,086.69.
By decision dated August 7, 2018, OWCP found that, based on Dr. Katz’ review, appellant
had no more than the previously awarded 59 percent permanent impairment of the right lower
extremity and 31 percent permanent impairment of the left lower extremity.
On August 14, 2018 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
Following a preliminary review, OWCP’s hearing representative vacated the August 7,
2018 decision. The hearing representative found that OWCP had impermissibly accorded the
weight of the evidence to the DMA rather than the IME, noting that a DMA could not resolve a
conflict in medical opinion. She further determined that OWCP should clarify the date of
maximum medical improvement (MMI) and obtain a supplemental report from Dr. Rockowitz
regarding his impairment rating.
On December 14, 2018 OWCP requested that Dr. Rockowitz clarify his impairment rating.
In a response dated March 13, 2019, Dr. Rockowitz advised that he had fully answered the
questions posed in his prior two reports.
OWCP, on March 25, 2019 referred appellant to Dr. Francis K. Tindall, a Board-certified
orthopedic surgeon, for a second opinion examination. In a report dated May 8, 2019, Dr. Tindall
diagnosed status post right knee replacement with limited ROM and status post left knee
unicondylar knee replacement with good results. He found 31 percent permanent impairment of
the right lower extremity and 21 percent permanent impairment of the left lower extremity.
On August 27, 2019 Dr. Katz reviewed Dr. Tindall’s report and concurred with his
impairment rating.
By decision dated September 6, 2019, OWCP found that appellant had no more than the
previously awarded 31 percent permanent impairment of the left lower extremity and 59 percent
permanent impairment of the right lower extremity.
On September 24, 2019 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review.

4

Following a preliminary review, by decision dated November 13, 2019, OWCP’s hearing
representative vacated the September 6, 2019 decision. The hearing representative found that
OWCP had not resolved the conflict in opinion between Dr. Morley and Dr. Hom and instructed
OWCP to refer appellant for a new referee examination.
On May 5, 2020 OWCP referred appellant to Dr. Ralph Purcell, a Board-certified
orthopedic surgeon, for an impartial medical examination.
In a report dated June 11, 2020, Dr. Purcell discussed appellant’s complaints of pain in the
knees, particularly on the right side, reduced motion, and stiffness. He noted that appellant had
undergone a right total knee revision in 2019. On examination Dr. Purcell found diffuse swelling
with no effusion and mild clicking of the right knee with passive motion. He further found intact
lower extremity sensation and strength and no knee warmth, erythema, erythematous streaking, or
instability. Dr. Purcell measured left knee flexion of zero to 100 degrees and right knee flexion of
25 to 80 degrees. He diagnosed status post bilateral knee arthritis, status post left partial knee
replacement, status post right total knee replacement with subsequent revision, and status post
manipulation of the right knee under anesthesia. For the right knee, Dr. Purcell identified the CDX
according to Table 16-3 on page 511 as a class 4 knee replacement, which yielded a default value
of 67 percent. He identified the left knee CDX as a class 3 knee replacement, which yielded a
default value of 37. Dr. Purcell found a GMCS was not applicable. He applied a GMFH of two
for the right knee and one for the left knee and a GMPE of three for the right knee and two for the
left knee. Dr. Purcell further determined that the GMFH for the right knee should be increased to
three and the GMPE should be increased to four due to additional pathology. Utilizing the net
adjustment formula, he found 63 percent permanent impairment of the right lower extremity and
31 percent permanent impairment of the left lower extremity. Dr. Purcell further found 42 percent
permanent impairment of the right lower extremity and 10 percent permanent impairment of the
left lower extremity using the ROM method.
By decision dated June 22, 2020, OWCP granted appellant a schedule award for an
additional four percent permanent impairment of the right lower extremity. The period of the
award ran for 11.52 weeks from June 4 to August 23, 2020 at an effective pay rate date of
February 22, 2013, the date of his retirement.
On August 26, 2020 appellant, through counsel, requested reconsideration. Counsel
asserted that Dr. Purcell had incorrectly based his GMFH solely on gait derangement rather than
subjective findings from the American Academy of Orthopedic Surgeons (AAOS) qu estionnaire.
He argued that Dr. Purcell should have used the AAOS inventory as it yielded a higher GMFH, as
found by Dr. Morley. Counsel contended that appellant had 67 percent permanent impairment of
the right lower extremity and 34 percent permanent impairment of the left lower extremity.
By decision dated October 30, 2020, OWCP denied appellant’s request for reconsideration
of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

5

LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions 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. FECA,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such a determination is a matter which rests in the
discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized
the use of a single set of tables so that there may be uniform standards applicable to all claimants.
OWCP evaluates the degree of permanent impairment according to the standards set forth in the
specified edition of the A.M.A., Guides, published in 2009. 7 The Board has approved the use by
OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes. 8
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). 9 Under the sixth edition, the evaluator identifies the CDX, which is then
adjusted by GMFH, GMPE and/or GMCS.10 The net adjustment formula is (GMFH - CDX) +
(GMPE - CDX) + (GMCS - CDX).11 Evaluators are directed to provide reasons for their
impairment choices, including the choices of diagnoses from regional grids and calculations of
modifier scores. 12
Section 8123(a) of FECA provides, in pertinent part: “If there is 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.”13 This is called a referee
examination and OWCP will select a physician who is qualified in the appropriate specialty and
who has no prior connection with the case. 14 Where a case is referred to an IME for the purpose

5

Supra note 2.

6

20 C.F.R. § 10.404.

7

For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides, (6 th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017); see also id. at Chapter 3.700, Exhibit 1 (January 2010).
8

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

9

A.M.A., Guides (6 th ed. 2009), p.3, section 1.3, International Classification of Functioning, Disability and Health
(ICF): A Contemporary Model of Disablement.
10

Id. at 494-531.

11

Id. at 411.

12

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

13

5 U.S.C. § 8123(a).

14

C.W., Docket No. 18-1536 (issued June 24, 2019).

6

of resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based
on a proper factual background, must be given special weight. 15
OWCP’s procedures provide that, if a case has been referred to an IME to resolve a conflict
regarding permanent impairment, it is unnecessary to route the file to a DMA as long as the IME
explains his or her impairment rating and cites to the appropriate tables and the A.M.A., Guides.
The DMA should not resolve the conflict in medical opinion.16
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish greater than 31
percent permanent impairment of the left lower extremity and 63 percent permanent impairment
of the right lower extremity, for which he previously received schedule award compensation.
OWCP determined that a conflict in medical opinion existed between Dr. Morley and
Dr. Hom regarding the extent of appellant’s permanent impairment of the lower extremities.
Following development, it properly referred appellant, pursuant to section 8123 of FECA,17 to
Dr. Purcell, a Board-certified orthopedic surgeon, for an impartial medical examination in order
to resolve the conflict.
On June 11, 2020 Dr. Purcell found full sensation and strength of the lower extremities
with no instability, warmth, or erythema, and diffuse swelling and mild clicking of the right knee
with passive motion. He measured ROM of zero to 100 degrees flexion of the left knee and 25 to
80 degrees flexion of the right knee. For the right knee, Dr. Purcell identified the CDX as a class
4 knee replacement, which yielded a default value of 67 percent. He applied a GMFH of three and
a GMPE for four and determined that a GMCS was not applicable. Using the net adjustment
formula yielded 63 percent impairment. 18 For the left knee, Dr. Purcell identified the CDX as a
class 3 knee replacement, for a default value of 37 percent. He applied a GMFH of one and a
GMPE for two and determined that a GMCS was not applicable. Using the net adjustment formula
yielded 31 percent impairment.19
The Board finds that OWCP properly accorded the special weight of the evidence to the
well-reasoned report of Dr. Purcell.20 Dr. Purcell accurately summarized the relevant medical
evidence, provided detailed findings on examination, and reached conclusions as to permanent
15

V.K., Docket No. 18-1005 (issued February 1, 2019); D.M., Docket No. 17-1411 (issued June 7, 2018).

16

Supra note 7 Chapter 2.808.6(g) (February 2013).

17

Supra note 8.

18

Utilizing the net adjustment formula, (GMFH - CDX) + (GMPE - CDX), or (3-4) + (4-4) = -1, yielded an
adjustment one place to the left on the table and 63 percent impairment.
19

Utilizing the net adjustment formula, (GMFH - CDX) + (GMPE - CDX), or (1-3) + (2-3) = -3, yielded a
downward adjustment of three and 31 percent impairment.
20

The Board notes that Dr. Purcell alternatively rated appellant’s impairment using ROM, however, Table 16-3
does not provide ROM as an alternate method of rating impairments.

7

impairment which comport with his physical findings. 21 As his report is detailed, wellrationalized, and based on the proper factual background, his opinion is entitled to the special
weight accorded an IME. 22 Dr. Purcell explained his impairment rating and cited the appropriate
tables and pages of the A.M.A., Guides, and thus OWCP did not need to refer his report for review
by a DMA.23 The Board thus finds that the evidence establishes that appellant has no more than
31 percent permanent impairment of the left lower extremity and 63 percent permanent impairment
of the right lower extremity. 24
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
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 payment of compensation at any time on his own motion or on application.25
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (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. 26
A request for reconsideration must also be received by OWCP within one year of the date
of OWCP decision for which review is sought.27 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits. 28 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. 29

21

See G.S., Docket No. 18-0827 (issued May 1, 2019).

22

Id.

23

Supra note 17.

24

See P.P., Docket No. 20-1228 (issued February 5, 2021).

25

5 U.S.C. § 8128(a).

26

20 C.F.R. § 10.606(b)(3); see also S.S., Docket No. 18-0647 (issued October 15, 2018).

27

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP decision for which review is sought. Supra note 7 at 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). Id. at Chapter 2.1602.4b.
28

Id. at § 10.608(a); see also M.S., Docket No. 18-1041 (issued October 25, 2018).

29

Id. at § 10.608(b); K.S., Docket No. 18-1022 (issued October 24, 2018).

8

ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Initially, the Board finds that OWCP properly considered correspondence from appellant’s
counsel as a request for reconsideration and not as a claim for an increased schedule award. 30 The
underlying issue on reconsideration is whether the medical evidence demonstrates a greater
permanent impairment than that previously awarded. Thus, the Board must determine whether
appellant presented sufficient evidence or argument regarding the extent of permanent impairment
to warrant a merit review pursuant to 5 U.S.C. § 8128(a).31
On reconsideration counsel argued that Dr. Purcell had inaccurately found GMFH based
only on gait derangement rather than subjective findings from an AAOS questionnaire. However,
this argument is duplicative of the findings made by Dr. Morley in his January 12, 2012 report
which is previously of record. The Board has held that the submission of evidence or argument
which repeats or duplicates evidence or argument already in the case record does not constitute a
basis for reopening a case.32 Thus, appellant is not entitled to a review of the merits of his claim
based on the first and second above-noted requirements under section 10.606(b)(3). 33
The Board further finds that appellant did not submit any relevant or pertinent new
evidence not previously considered. As appellant did not provide relevant and pertinent new
evidence, he is not entitled to a merit review based on the third requirement under section
10.606(b)(3). 34
The Board, accordingly, finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 35
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish greater than 31
percent permanent impairment of the left lower extremity and 63 percent permanent impairment
of the right lower extremity, for which he previously received schedule award compensation. The
Board further finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim, pursuant to 5 U.S.C. § 8128(a).

30

See K.W., Docket No. 19-0553 (issued November 8, 2019); B.W., Docket No. 18-1415 (issued March 8, 2019).

31

S.W., Docket No. 18-1261 (issued February 22, 2019).

32

See A.W., Docket No. 21-0298 (issued August 26, 2021); N.L., Docket No. 18-1575 (issued April 3, 2019);
Eugene F. Butler, 36 ECAB 393, 398 (1984).
33

20 C.F.R. § 10.606(b)(3)(i) and (ii). See also C.K., Docket No .18-1019 (issued October 24, 2018).

34

Id. at § 10.606(b)(3)(iii); T.W., Docket No. 18-0821 (issued January 13, 2020).

35

A.F., Docket No. 18-1154 (issued January 17, 2019); C.C., Docket No. 17-0043 (issued June 15, 2018).

9

ORDER
IT IS HEREBY ORDERED THAT the October 30 and June 22, 2020 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: October 14, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

10