United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, WASHINGTON BULK )
MAIL CENTER, Washington, DC, Employer
)
__________________________________________ )
T.R., Appellant

Appearances:
Joe McLaughlin, for the appellant
Office of Solicitor, for the Director

Docket No. 09-604
Issued: October 14, 2009

Case Submitted on the Record

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

JURISDICTION
On January 7, 2009 appellant, through his representative, filed a timely appeal from an
October 22, 2008 decision of an Office of Workers’ Compensation Programs’ hearing
representative who affirmed an overpayment of $61,975.57, for which he was at fault and not
entitled to waiver. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction
to review the overpayment decision.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received an
overpayment of compensation in the amount of $61,975.57; (2) whether the Office properly
found that he was with fault in the creation of the overpayment thereby precluding waiver; and
(3) whether the Office properly determined that the overpayment would be repaid by deducting
$500.00 from appellant’s continuing compensation.
On appeal, appellant contends that the Office did not inform him of his right to inspect
government records. He contends that he cannot afford to have $500.00 per month deducted
from his continuing compensation as it will cause him severe financial hardship.

FACTUAL HISTORY
This is the second appeal in this case. On August 17, 2007 the Board reversed the
Office’s determination that appellant received an overpayment in the amount of $61,975.57
because it did not properly notify him that he had a right to inspect and copy government records
with regard to the overpayment.1 The law and the facts as set forth in the previous Board
decision are incorporated herein by reference.2
By letter dated September 24, 2007, the Office made a new preliminary determination
that appellant had been overpaid in the amount of $61,975.57. The overpayment occurred
because he was paid based on the augmented compensation rate of 75 percent for the period
August 13, 2000 to April 18, 2004. The Office found that appellant should have been paid at the
66.6 percent pay rate from October 21, 2000 to April 18, 2004. It also found that he was paid for
total disability compensation during the period April 13, 1987 to April 18, 2004 when he should
have been paid based on his loss of wage-earning capacity as he returned to work four hours a
day as a modified clerk on April 13, 1987. The Office noted that appellant was paid
compensation from August 13, 2000 to April 18, 2004 in the amount of $112,140.28 but he
should have only been paid $50,164.71. The difference in the amount represented an
overpayment of $61,975.57.3 The Office made a preliminary determination that appellant was at
fault with the creation of the overpayment as he knew or should have known that he was not
entitled to compensation at the 75 percent rate when he no longer had an eligible dependent and
that he also should have been aware that he was not entitled to full compensation when he
returned to work part time. With the preliminary determination, the Office advised him of
actions he could take including “the right to inspect and copy [the Office’s] records with respect
to this debt, and to dispute any information contained in those records concerning the debt.”
Appellant responded to the Office’s overpayment questionnaire on October 7, 2007. He
listed his sole source of income a Department of Labor monthly compensation check in the
amount of $1,328.00 before deductions. Appellant listed his expenses as $1,100.00 for rent or
mortgage; $320.00 for food; $75.00 for clothing; and $65.00 for telephone. He listed other
expenses as $200.00 per month, and totaled this to indicate monthly expenses of $1,760.00.
Appellant listed no cash on hand and $8.00 in his checking account as his only asset. He
requested a hearing. Appellant also requested the right to inspect and copy all records with
respect to this debt.

1

Docket No. 07-675 (issued August 17, 2007).

2

Id.

3

In supporting documentation, the Office indicated that appellant was paid $112,140.28 for the period August 14,
2000 to April 18, 2004 based on a pay rate of $766.80 per week, no wage-earning capacity and a compensation rate
of three-quarters. It indicated that he should have been paid $2,793.34 for the period August 14 through October 20,
2000 based on a pay rate of $766.80 per week, a wage-earning capacity of $383.40 and a compensation rate of twothirds. The Office further found that appellant should have been paid $47,371.37 for the period October 21, 2000 to
April 18, 2004 based on a wage-earning capacity of $383.40 and a compensation rate of two-thirds. The correct
amount that he should have been paid for the period August 14, 2000 to April 18, 2004 is represented by adding
$47,371.37 plus $2,793.34 for a total amount of $50,164.71.

2

At the hearing held on February 27, 2008, appellant’s attorney contended that the Office
had not complied with the Board’s decision in that appellant did not receive notice from the
Office of his right to inspect and copy government records pertaining to the overpayment.
By decision dated October 22, 2008, the hearing representative finalized the overpayment
determination.
LEGAL PRECEDENT -- ISSUE 1
The Act4 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.5
If the disability is total, the United States shall pay the employee during the disability monthly
compensation equal to 66 2/3 percent of her monthly pay, which is known as her basic
compensation for total disability.6 Where the employee has one or more dependents as defined
in the Act, he or she is entitled to have his or her basic compensation augmented at the rate of 8
1/3 percent, for a total of 75 percent of monthly pay.7 If a claimant receives augmented
compensation during a period where he has no eligible dependents, the difference between the
compensation he was entitled to receive at the two-thirds compensation rate and the augmented
compensation received at the three-quarters rate constitutes an overpayment of compensation.8
Furthermore, a claimant is not entitled to receive total disability compensation and actual
earnings for the same period. Office procedures provide that an overpayment in compensation is
created when a claimant returns to work but continues to receive wage-loss compensation.9
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment in the amount of $61,975.57.
Appellant was not entitled to receive compensation at the augmented rate of 75 percent after
August 14, 2000 as he no longer had any dependents. He also received compensation based on
total disability after he had returned to part-time work.10 For the period July 31, 2000 to
April 18, 2004, appellant was paid $112,140.28 in compensation. However, he was only entitled
to compensation in the amount of $50,164.71. The difference between these amounts,

4

5 U.S.C. §§ 8101-8193.

5

Id. at § 8102(a).

6

Id. at § 8105(a).

7

Id. at § 8110(b).

8

Diana L. Booth, 52 ECAB 370 (2001).

9

Danny E. Haley, 56 ECAB 393 (2005); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial
Overpayment Actions, Chapter 6.200.2(a) (May 2004).
10

Appellant returned to work for the employing establishment on March 27, 1999 at an annual salary of
$38,650.00.

3

$61,975.57, is the amount of the overpayment.11 Appellant received compensation for total
wage loss as opposed to compensation based on his loss of wage-earning capacity determination
and based on an incorrect pay rate, the Board finds that an overpayment of compensation was
created.
The Board notes that appellant does not contest the amount of the overpayment. Rather
he contends that the Office did not properly notify him of his right to inspect government records
with regard to the overpayment. The Board previously remanded this case to allow the Office to
inform appellant of this right. On remand, the Office properly addressed this issue. When the
Office issued its November 24, 2007 preliminary determination, it clearly advised appellant that
he had the right to inspect and copy Office records with regard to the debt and to dispute any
information contained in those records. Accordingly, appellant’s argument is not persuasive on
this appeal.
LEGAL PRECEDENT -- ISSUE 2
The Office may 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 receives
from the Office are proper. The recipient must show good faith and exercise a high degree of
care in reporting events which may affect entitlement to or the amount of benefits. A recipient
who has done any of the following may be found to be at fault with respect to 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; (2) failed to provide information which he knew or should
have known to be material; or (3) accepted a payment which he knew or should have known to
be incorrect (this provision applies only to the overpaid individual).12
ANALYSIS -- ISSUE 2
Appellant knew or should have known that he was not entitled to receive wage-loss
compensation based on total disability after he returned to part-time work. Furthermore, he had
sufficient notice from prior correspondence from the Office that he was not entitled to
augmented compensation after he had no eligible dependents. The Board notes that, even if an
overpayment resulted from negligence by the Office, this does not excuse a claimant from
accepting payments that the claimant knew or should have known were incorrect.13 The Board
finds, therefore, that appellant is at fault in the creation of the overpayment. As he is at fault in
the creation of the overpayment, he is not eligible for waiver of the recovery of the overpayment.

11

See supra note 3.

12

20 C.F.R. § 10.433.

13

Danny E. Haley, supra note 9.

4

LEGAL PRECEDENT -- ISSUE 3
The amount of adjustment of continuing compensation to recover an overpayment lies
within the Office’s discretion. The analysis that determines the amount of adjustment is
substantially the same as that used to determine waiver.14 With regard to the amount withheld
from appellant’s continuing compensation payments to recover the amount of the overpayment,
section 10.441(a) of the Office’s regulations provides:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to [the Office] the amount of the
overpayment as soon as the error is discovered or his or her attention is called to
same. If no refund is made, [the Office] shall decrease later payments of
compensation, taking into account the probable extent of future payments, the rate
of compensation, the financial circumstances of the individual and any other
relevant factors, so as to minimize any hardship.”15
ANALYSIS -- ISSUE 3
In the instant case, appellant alleged that he had income of $1,328.00. He listed expenses
of $1,760.00. However, the Office hearing representative noted that appellant is in receipt of
total disability compensation benefits of $2,200.12 every 28 days or $2,383.46 a month. As
appellant listed his monthly expenses as $1,760.00, the hearing representative correctly
calculated that this left him $623.46 in excess income. His income exceeded his expenses by
$623.46 per month and the hearing representative properly exercised her discretion in directing
recovery of the overpayment at a rate of $500.00 per month from his continuing compensation
benefits.
CONCLUSION
The Board finds that the Office properly determined that appellant received an
overpayment of compensation in the amount of $61,975.57; properly found that he was with
fault in the creation of the overpayment thereby precluding waiver; and properly determined that
the overpayment would be repaid by deducting $500.00 from each of his continuing
compensation payments.

14

Howard R. Nahikian, 53 ECAB 406 (2002).

15

20 C.F.R. § 10.441(a).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 22, 2008 is affirmed.
Issued: October 14, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
U.S. POSTAL SERVICE, NEW JERSEY
INTERNATIONAL & BULK MAIL CENTER,
Jersey City, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-562
Issued: October 27, 2009

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 December 23, 2008 appellant filed a timely appeal from schedule award decisions of
the Office of Workers’ Compensation Programs dated February 1 and August 18, 2008.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award
determinations in this case.
ISSUE
The issue is whether appellant has more than a five percent impairment of the right upper
extremity and more than a five percent impairment of the left upper extremity for which she
received schedule awards.
On appeal appellant, through her attorney, contends that she has preexisting cervical
radiculitis that should be considered in the impairment rating, that the electromyographic (EMG)
studies demonstrate residuals of carpal tunnel syndrome, and that the report of Dr. Evan
Kovalsky, a Board-certified orthopedic surgeon, who provided an impartial evaluation, is not
entitled to special weight because he did not perform Semmes-Weinstein testing, as required by

the American Medical Association, Guides to the Evaluation of Permanent Impairment
(hereinafter A.M.A., Guides).1
FACTUAL HISTORY
On March 27, 1997 appellant, then a 57-year-old maintenance support clerk, submitted a
Form CA-2, occupational disease claim, alleging that repetitive work on a keypunch and at a
computer caused tendinitis. She was first aware of her condition and its relationship to her
employment on March 27, 1997. Appellant did not stop work. A May 21, 1997 medical report
with an illegible signature noted a history of cervical disc herniation in 1983. On May 25, 1997
Dr. Clifton Howell, a Board-certified internist, noted complaints of pain in the hands; however,
EMG testing on June 5, 1997 was reported as normal. Dr. John Carmody, Board-certified in
orthopedic surgery, diagnosed tendinitis on June 24, 1997. On September 15, 1997 the Office
accepted that appellant sustained employment-related bilateral tendinitis of the hand and wrists.
EMG and nerve conduction (NCS) studies on March 9, 1998 demonstrated bilateral median
nerve entrapment across the wrists and no evidence of ulnar neuropathy. On June 24, 1999
bilateral carpal tunnel syndrome was accepted.
In a March 19, 1999 report, Dr. Mark A. Filippone, a Board-certified physiatrist, noted
appellant’s history of bilateral wrist pain and diagnosed carpal tunnel syndrome and
de Quervain’s syndrome. A May 26, 1999 EMG demonstrated bilateral carpal tunnel syndrome,
mild left Guyon canal syndrome and left C5-6 cervical radiculopathy. On May 4, 2000
Dr. Stephen Hall, Board-certified in plastic surgery, performed left carpal tunnel release.
Appellant stopped work that day and was placed on the periodic rolls. Dr. Hall performed carpal
tunnel release on the right on September 14, 2000. Dr. Filippone submitted monthly reports
advising that appellant was totally disabled.
Appellant retired on June 2, 2006 and submitted a schedule award claim. In an
August 30, 2006 report, Dr. David Weiss, an osteopath, noted his review of records from
Dr. Filippone, including EMG and NCS reports, the history of injury, appellant’s work and past
medical history, and her complaints of bilateral wrist and hand pain, numbness and tingling. He
opined that in accordance with the fifth edition of the A.M.A., Guides, appellant had a left upper
extremity impairment of 37 percent and a right upper extremity impairment of 36 percent. In
reports dated December 6 and 13, 2006, Dr. Filippone agreed with the impairment rating of
Dr. Weiss. On July 6, 2007 he performed EMG and NCS testing and advised that there was
abnormal showing of the calculated median sensories over the carpal canals bilaterally and that
there was evidence of partial denervation in the muscles innervated by the left C5-6 cervical
nerve roots and mild partial denervation in the left abductor pollicis brevis. On April 18, 2007
Dr. Filippone advised that appellant had continued complaints of pain in the right wrist and
forearm and tingling in the fingers bilaterally.
In an August 2, 2007 report, Dr. Arnold T. Berman, Board-certified in orthopedic surgery
and an Office medical adviser, reviewed the medical record. He advised that maximum medical
1

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

2

improvement was reached on August 30, 2006 and that Dr. Weiss’ report could not be accepted
as submitted because it did not conform with the A.M.A., Guides. Dr. Berman advised that
appellant had 10 percent impairment of each upper extremity.
In an August 21, 2007 report, Dr. Stephen Huish, a Board-certified physiatrist, noted that
bilateral hand and wrist examination demonstrated continued but improved weakness of the
abductor pollicis brevis and sensory deficits in the median distribution, more profound on the
right. In reports dated August 9 and September 13, 2007, Dr. Filippone advised that appellant’s
symptoms of numbness and tingling in both hands persisted and was unchanged.
The Office found that a conflict in medical opinion had arisen between Dr. Weiss and
Dr. Berman, the Office medical adviser, regarding the extent of appellant’s upper extremity
impairments. It referred her to Dr. Kovalsky, a Board-certified orthopedic surgeon, for another
impartial medical evaluation. In a November 9, 2007 report, Dr. Kovalsky reviewed the medical
record and noted appellant’s complaints of constant hand and wrist pain and numbness and
tingling in the fingertips of all five digits, worse on the right. He provided findings on physical
examination, advising that there was mild inappropriate illness behavior and inconsistencies
during her examination. There was no swelling or discoloration of the finger, hands or wrists.
Cervical motion was good. Motion of elbows and shoulders was full and painless. Wrist motion
was full although the extremes of flexion and extension caused some discomfort and with both
ulnar and radial deviation. Finger interphalangeal joint motion was full with no contractures.
Manual motor testing revealed give-out weakness on resisted palmar abduction of the right
thumb with no sign of thenor or intrinsic atrophy. Dr. Kovalsky noted that appellant did not give
full effort on Jaymar grip testing. Phalen’s test was positive, reverse Phalen’s negative, Tinel’s
positive on the right and negative on the left, and Finkelstein’s equivocal on the right. There was
mild tenderness in the right wrist diffusely and no tenderness on the left. Sensory testing
revealed nonanatomical and nondermatomal findings with a stocking glove type of loss of
sensation to sharp in the right arm, starting in the mid-forearm and going globally distally
involving patterns not involving the carpal or nerve entrapment at the wrist or ulnar and radial
nerve loss in the right hand. The left hand also demonstrated a glove type of sensory loss
starting at the wrist and going distally. Dr. Kovalsky also noted varied findings on repeated two
point discrimination testing. He noted that appellant’s hands were well groomed, opining that
one would normally expect that, if she had a decrease in global sensation and lack of feeling to
the extent that she complained of, there would be some sign of trauma to the fingers or skin from
loss of protective sense but that none was present.
Dr. Kovalsky further advised that appellant had a significant amount of subjective
symptoms but no significant objective findings, noting that she had no atrophy to indicate any
ongoing muscle denervation, no indication of any significant objective abnormalities suggestive
of any progressive problems, no indication of clinically significant radiculopathy, no significant
evidence of any residual tendinitis and, based on her history, no significant loss of ability to do
activities of daily living. He reported that she seemed to have good protected sensation
throughout the hands and that, although her subjective symptoms would not correlate to isolated
carpal tunnel problems and were nondermatomal, she had a positive Tinel’s and Phalen’s on the
right but no clinical indication to suggest a severe carpal tunnel problem. Dr. Kovalsky advised
that there were no objective findings on the left with a negative Tinel’s and intact sensory
findings and no atrophy. He advised that, based on his findings and utilizing page 495 of the

3

A.M.A., Guides, appellant would fall under Category 2, which yielded bilateral upper extremity
impairments of five percent each, based on appellant’s EMG findings. Dr. Kovalsky explained
that he did not think she was entitled to an impairment rating greater than five percent because
additional sensory findings could not be substantiated due to significant invalid efforts on testing
and the nondermatomal pattern of her complaints. He advised that maximum medical
improvement was reached on January 26, 2006, as provided by Dr. Filippone.
On December 20, 2007 Dr. Henry J. Magliato, an Office medical adviser and Boardcertified orthopedic surgeon, reviewed the medical evidence and Dr. Kovalsky’s November 9,
2007 report of no objective sensory or motor findings on physical examination with positive
EMG findings. He advised that maximum medical improvement was reached on January 26,
2006 and agreed with Dr. Kovalsky’s application of the A.M.A., Guides. Dr. Magliato stated
that, because appellant had EMG changes, he would accept Dr. Kovalsky’s conclusion that she
had a five percent impairment to each upper extremity.
By decision dated February 1, 2008, appellant was granted schedule awards for five
percent impairment of each upper extremity, for a total of 31.2 weeks, to run from January 26 to
September 1, 2006.
On February 15, 2008 appellant’s attorney requested a hearing that was held on
June 19, 2008. At the hearing, appellant testified concerning her work history and stated that she
had no preexisting conditions when she began work at the employing establishment in 1976 as a
keypunch operator. She disagreed with Dr. Kovalsky’s report and described her current physical
condition, stating that she could not grasp anything and had a pins and needles sensation.
Appellant enumerated the activities of daily living that she could no longer perform and advised
that she wore splints at night and sometimes during the day. Appellant’s attorney noted that
Dr. Kovalsky’s opinion was not sufficient to resolve the conflict in medical evidence.
By decision dated August 18, 2008, an Office hearing representative credited the opinion
of Dr. Kovalsky and affirmed the February 1, 2008 schedule award decision.
LEGAL PRECEDENT
Under section 8107 of the Federal Employees’ Compensation Act2 and section 10.404 of
the implementing federal regulations,3 schedule awards are payable for permanent impairment of
specified body members, functions or organs. The Act, however, does not specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice under the law for all claimants, good administrative practice necessitates the use of
a single set of tables so that there may be uniform standards applicable to all claimants. The

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

A.M.A., Guides4 has been adopted by the Office and the Board has concurred in such adoption,
as an appropriate standard for evaluating schedule losses.5
It is the claimant’s burden to establish that he or she sustained a permanent impairment of
a scheduled member or function as a result of an employment injury.6 Office procedures provide
that to support a schedule award, the file must contain competent medical evidence which shows
that the impairment has reached a permanent and fixed state and indicates the date on which this
occurred (“date of maximum medical improvement”) describes the impairment in sufficient
detail to include, where applicable, the loss in degrees of active and passive motion of the
affected member or function, the amount of any atrophy or deformity, decreases in strength or
disturbance of sensation, or other pertinent description of the impairment, and the percentage of
impairment should be computed in accordance with the fifth edition of the A.M.A., Guides. The
procedures further provide that after obtaining all necessary medical evidence, the file should be
routed to the Office medical adviser for opinion concerning the nature and percentage of
impairment, and the Office medical adviser should provide rationale for the percentage of
impairment specified.7
Chapter 16 of the fifth edition of the A.M.A., Guides provides the framework for
assessing upper extremity impairments.8 Regarding carpal tunnel syndrome, the A.M.A., Guides
provide:
“If, after an optimal recovery time following surgical decompression, an
individual continues to complain of pain, paresthesias, and/or difficulties in
performing certain activities, three possible scenarios can be present:
1. Positive clinical findings of median nerve dysfunction and electrical
conduction delay(s): the impairment due to residual CTS [carpal tunnel
syndrome] is rated according to the sensory and/or motor deficits as
described earlier.
2. Normal sensibility and opposition strength with abnormal sensory
and/or motor latencies or abnormal EMG testing of the thenar muscles: a
residual CTS is still present, and an impairment rating not to exceed five
percent of the upper extremity may be justified.

4

A.M.A., Guides, supra note 1.

5

See Joseph Lawrence, Jr., 53 ECAB 331 (2002).

6

Tammy L. Meehan, 53 ECAB 229 (2001).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Evaluation of Schedule Awards, Chapter 2.808.6(d)
(August 2002).
8

A.M.A., Guides, supra note 1 at 433-521.

5

3. Normal sensibility (two-point discrimination and Semmes-Weinstein
monofilament testing), opposition strength, and nerve conduction studies:
there is no objective basis for an impairment rating.”9 (Emphasis in the
original.)
Section 16.5d of the A.M.A., Guides provide that in compression neuropathies, additional
impairment values are not given for decreased grip strength. Carpal tunnel syndrome is an
entrapment/compression neuropathy of the median nerve, and the A.M.A., Guides provides that
impairment for carpal tunnel syndrome be rated on motor and sensory deficits only and that in
the absence of a complex regional pain syndrome, additional impairment values are not given for
decreased motion.10
Section 16.8a provides that in a rare case, if the examiner believes the individual’s loss of
strength represents an impairing factor that has not been considered adequately by other
methods, the loss of strength may be rated separately. An example of such situation would be
loss of strength due to a severe muscle tear that healed leaving a palpable muscle defect.
Decreased strength cannot be rated in the presence of decreased motion, painful conditions,
deformities or absence of parts that prevent effective application of maximal force in the region
being evaluated.11
Section 8123(a) 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.12 When 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 on a proper factual background, must be
given special weight.13
ANALYSIS
The Office determined that a conflict in the medical evidence had been created between
the opinions of Dr. Weiss, an attending osteopath, and Dr. Berman, an Office medical adviser,
regarding the extent of appellant’s upper extremity impairments. It properly referred appellant to
Dr. Kovalsky, Board-certified in orthopedic surgery, for an impartial evaluation.14 In a
comprehensive report dated November 9, 2007, Dr. Kovalsky described the employment injury,
his review of the medical record, and appellant’s complaints of constant hand and wrist pain and
numbness and tingling in the fingertips of all five digits, worse on the right. He also noted varied
findings on repeated two-point discrimination testing. Dr. Kovalsky reported that, while
9

A.M.A., Guides, supra note 1 at 495.

10

Id. at 494; Kimberly M. Held, 56 ECAB 670 (2005).

11

A.M.A., Guides, supra note 1 at 508; see Cerita J. Slusher, 56 ECAB 532 (2005).

12

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

13

Manuel Gill, 52 ECAB 282 (2001).

14

See id..

6

appellant had a significant amount of subjective symptoms, she had no significant objective
findings, noting no atrophy to indicate any ongoing muscle denervation, no indication of any
significant objective abnormalities suggestive of any progressive problems, no indication of
clinically significant radiculopathy, no significant evidence of any residual tendinitis and, based
on her history, no significant loss of ability to do activities of daily living. He advised that,
based on his findings, appellant would fall under Category 2, as described on page 495 of the
A.M.A., Guides, for bilateral upper extremity impairments of five percent each, based on
appellant’s EMG findings. Appellant was not entitled to a greater impairment rating because
additional sensory findings could not be substantiated due to significant invalid efforts on testing
and the nondermatomal pattern of her complaints. Dr. Kovalsky advised that maximum medical
improvement was reached on January 26, 2006, as provided by Dr. Filippone.
Office procedures indicate that referral to an Office medical adviser is appropriate when a
detailed description of the impairment from the attending physician is obtained.15 On
December 20, 2007 Dr. Magliato, an Office medical adviser who is a Board-certified
orthopedist, noted his review of the medical evidence and Dr. Kovalsky’s November 9, 2007
report of no objective sensory or motor findings on physical examination with positive EMG
findings. Dr. Magliato advised that maximum medical improvement was reached on January 26,
2006 and agreed with Dr. Kovalsky’s application of the A.M.A., Guides and his conclusion that
appellant had a five percent impairment of each upper extremity.
The Board finds that Dr. Kovalsky provided a comprehensive, well-rationalized
evaluation in which he clearly explained his impairment rating. His report is entitled to the
special weight accorded an impartial examiner and constitutes the weight of the medical opinion
evidence.16 Appellant did not establish that she has greater impairment than that awarded.
The Board notes that there is no evidence of record to support appellant’s contention that
she had preexisting cervical radiculopathy. While the record contains a May 21, 1997 report
with an illegible signature that noted a history of cervical disc herniation in 1983, this does not
constitute competent medical evidence.17 Furthermore, an EMG of June 5, 1997 was reported as
normal. It was not until May 26, 1999, more than two years after appellant filed her claim, that
an EMG demonstrated left C5-6 cervical radiculopathy. Therefore, she did not meet her burden
of proof to establish cervical radiculopathy as a preexisting condition.
The Board further finds that, contrary to appellant’s contention there is no requirement in
the A.M.A., Guides that Semmes-Weinstein testing be done. Rather, section 16.5d of the
A.M.A., Guides provides that Semmes-Weinstein testing may be indicated but is not required.18

15

Supra note 7.

16

See Sharyn D. Bannick, 54 ECAB 537 (2003).

17

See K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007).

18

A.M.A., Guides, supra note 1 at 493.

7

CONCLUSION
The Board finds that appellant did not establish that she has more than a five percent
impairment of the right upper extremity and a five percent impairment of the left upper extremity
for which she received schedule awards.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 18 and February 1, 2008 be affirmed.
Issued: October 27, 2009
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Newburyport, MA, Employer
__________________________________________

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

Docket No. 16-1209
Issued: February 16, 2017

Case Submitted on the Record

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

JURISDICTION
On May 18, 2016 appellant filed a timely appeal from a May 4, 2016 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $765.22 for the period March 28 through April 4,
2015; and (2) whether OWCP properly denied waiver of recovery of the overpayment.
FACTUAL HISTORY
Appellant, a 43-year-old letter carrier, has an accepted occupational disease claim for
right plantar fasciitis, bilateral hallux rigidus, and sequela of left foot pathological fracture,
1

5 U.S.C. § 8101 et seq.

which arose on or about September 1, 2012. OWCP also accepted that he experienced a
recurrence of disability beginning September 29, 2014.
Appellant received wage-loss
compensation for temporary total disability. OWCP placed him on the periodic compensation
rolls, effective December 14, 2014.
On March 23, 2015 appellant advised OWCP that he planned to return to full-time
regular duty, effective March 28, 2015. On March 30, 2015 the employing establishment
confirmed (Form CA-3) that he resumed his full-time regular duties on March 28, 2015. OWCP
subsequently removed appellant from the periodic compensation rolls.
On April 4, 2015 OWCP paid appellant net compensation in the amount of $1,496.78 for
the 28-day period of March 8 through April 4, 2015. The payment was disbursed via electronic
funds transfer (EFT/direct deposit). On that same date, OWCP disbursed an additional
$1,181.48 (EFT) for appellant’s child support obligation.
On May 20, 2015 OWCP notified appellant of its preliminary determination that he
received an overpayment of compensation in the amount of $765.22 for the period March 28
through April 4, 2015. It explained that the overpayment occurred because he received wageloss compensation for temporary total disability following his March 28, 2015 return to full-time
work. Appellant was entitled to wage-loss compensation for only 20 of the 28 days covered by
the April 4, 2015 periodic rolls payment.2 OWCP also advised of its preliminary determination
that he was not at fault in creating the overpayment. The May 20, 2015 preliminary
determination advised appellant of his appeal rights. OWCP instructed him to complete an
overpayment recovery questionnaire (Form OWCP-20) and submit supporting financial
documentation.
On May 27, 2015 appellant requested a prerecoupment hearing, which was scheduled for
February 18, 2016. He submitted his May 27, 2015 Form OWCP-20 overpayment recovery
questionnaire wherein he reported total monthly income of $4,845.09 and total monthly expenses
of $4,133.00, which included child support. In part 3 of the form -- without fault statement -appellant noted that “[t]he overpayment was an error of OWCP not me. It shouldn’t have to be
my problem now.” He did not submit any financial documentation to support his reported
monthly income and expenses.
Appellant did not participate in the scheduled prerecoupment hearing, therefore, the
Branch of Hearings and Review treated his request as a review of the written record.
By decision dated May 4, 2016, the hearing representative found that appellant received
an overpayment of compensation in the amount of $765.22 for the period March 28 to
April 4, 2015. She also determined that he was not at fault in the creation of the overpayment.
Additionally, the hearing representative denied waiver of recovery of the overpayment, noting
that appellant failed to provide any documentation supporting his claimed expenses.
2

Of the total funds ($2,678.26) disbursed on April 4, 2015, appellant’s was only entitled to receive $1,913.04
($2,678.26 ÷ 28 days = $95.65 per day × 20 days), which represented an overpayment of compensation in the
amount of $765.22.

2

LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.3
Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, he
or she may not receive salary, pay, or remuneration of any type from the United States, except in
limited circumstances.4 OWCP regulations provide that compensation for wage loss due to
disability is available only for any periods during which an employee’s work-related medical
condition prevents him or her from earning the wages earned before the work-related injury.5
A claimant is not entitled to receive temporary total disability and actual earnings for the
same period.6 OWCP procedures provide that an overpayment of compensation is created when
a claimant returns to work, but continues to receive wage-loss compensation.7
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $765.22. The record supports, and appellant has not disputed, that he returned to full-time
work on March 28, 2015, but continued to receive wage-loss compensation for temporary total
disability through April 4, 2015. When an employee returns to work and ceases to have any loss
of wages, he is no longer entitled to compensation for wage loss.8 Appellant does not dispute the
amount of the overpayment, but rather argues that “[t]he overpayment was an error of OWCP not
me. It shouldn’t have to be my problem now.” As he has not disputed the amount of the
overpayment and he returned to work on March 28, 2015, appellant was not entitled to disability
compensation for the eight-day period following his return to work. Accordingly, OWCP
properly found an overpayment of compensation in the amount of $765.22.
The Board will affirm the hearing representative’s May 4, 2016 finding regarding the fact
and amount of the overpayment. Additionally, the Board will not disturb the hearing
representative’s finding that appellant was not at fault in creating the above-noted overpayment.

3

5 U.S.C. § 8102.

4

Id. at § 8116(a).

5

20 C.F.R. § 10.500(a).

6

See R.W., Docket No. 13-1285 (issued November 13, 2013).

7

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.2a
(May 2004).
8

See Kenneth E. Rush, 51 ECAB 116 (1999).

3

LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter
that rests within OWCP’s discretion pursuant to statutory guidelines.9 These statutory guidelines
are found in section 8129(b) of FECA which states: Adjustment or recovery [of an
overpayment] by the United States may not be made when incorrect payment has been made to
an individual who is without fault and when adjustment or recovery would defeat the purpose of
this subchapter or would be against equity and good conscience.10 When a claimant is found to
be without fault in the matter of the overpayment, then, in accordance with section 8129(b),
OWCP may only recover the overpayment if it determined that recovery of the overpayment
would neither defeat the purpose of FECA nor be against equity and good conscience.11
Section 10.438 of OWCP’s regulations provide that the individual who received the
overpayment is responsible for providing information about income, expenses, and assets as
specified by OWCP. This information is needed to determine whether or not recovery of an
overpayment would defeat the purpose of FECA or be against equity and good conscience. This
information will also be used to determine the repayment schedule, if necessary. Failure to
submit the requested information within 30 days of the request shall result in denial of waiver,
and no further request for waiver shall be considered until the requested information is
furnished.12
ANALYSIS -- ISSUE 2
Appellant failed to provide any financial information within the appropriate time period
to show that he was entitled to waiver of recovery of the overpayment of compensation. The
Board notes that he merely filled in his income and expenses, but did not provide any
documentation to support his reported financial situation. Because appellant did not comply with
section 10.438 of OWCP’s regulations, he is not entitled to waiver of recovery of the $765.22
overpayment of compensation.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $765.22. The Board also finds that OWCP properly denied
waiver of recovery of the overpayment.

9

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

10

5 U.S.C. § 8129(b).

11

M.G., Docket No. 14-1917 (issued January 22, 2015).

12

20 C.F.R. § 10.438.

4

ORDER
IT IS HEREBY ORDERED THAT the May 4, 2016 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 16, 2017
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.T., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, Seattle, WA,
Employer
_________________________________________

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

Docket No. 10-2031
Issued: August 1, 2011

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 August 3, 2010 appellant filed an appeal from an April 30, 2010 merit decision of the
Office of Workers Compensation Programs denying her recurrence claim. Pursuant to the
Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c)(2) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that she sustained a recurrence of disability
commencing May 7, 2007 causally related to her March 20, 2007 work injury.
FACTUAL HISTORY
On March 20, 2007 appellant, then a 49-year-old customer service representative, injured
her right arm when she reached to retrieve a three-inch thick binder and two books on top of the
1

5 U.S.C. §§ 8101-8193.

binder began to fall. She felt pain in her wrist elbow and shoulder. The Office accepted the
claim for right arm strain and cervical subluxation. Appellant was off work from March 23
through April 4, 2007 and from April 22 through May 4, 2007.2 When at work, she was in a
sedentary position. Appellant stopped work on May 7, 2007 and filed a claim for wage-loss
compensation for the period May 7 through June 29, 2007. The record reflects that she
underwent chiropractic manipulations and physical therapy.
On March 29, 2007 Dr. B. Daniel Chilczuk, an occupational medicine specialist, noted
the work injury and listed appellant’s complaints of right side cervical and upper thoracic
tenderness with diffuse right arm radiation not in any particular dermatome. Cervical range of
motion was full with mild diffuse discomfort on extremes. Neuromuscular examination of the
arms was compromised due to pain. Arm ranges of motion were full with diffuse discomfort on
extremes for the right wrist and elbow. Tinel’s and Phalen’s tests were negative. The right hand
had mild diffuse swelling. Dr. Chilczuk diagnosed nonspecific subacute right cervical, upper
thoracic and right arm strain. He advised that the condition should resolve with conservative
treatment and that appellant could return to modified duty on April 5, 2007.
In a May 7, 2007 report, Dr. Chilczuk treated appellant for persistent discomfort in the
right cervical and upper thoracic with diffuse right arm radiation associated with mild global
weakness. He reported findings of normal gait, full cervical range of motion, no significant
discomfort, negative compression and Spurling tests, mild right arm weakness, bilateral full
shoulder range of motion, full and nontender elbow and wrist range of motion and negative
Tinel’s and Phalen’s tests at the wrists. Dr. Chilczuk advised appellant’s condition as work
related and that she would tentatively be off work for four weeks and would undergo diagnostic
testing.
On May 17, 2007 appellant underwent a cervical magnetic resonance imaging (MRI)
scan. In a May 22, 2007 report, Dr. Chilczuk noted she had moderate improvement in all
affected areas. Appellant’s most persistent complaint was her right elbow lateral aspect, which
was aggravated by increased physical activities. There were no radicular symptoms in the arms
or gross muscular weakness, no cervical restriction in spinal range of motion or any right
shoulder restriction in joint range of motion despite increased discomfort anterior aspect with full
flexion. There were also no symptoms of instability, no restriction in joint range of motion over
the right elbow or wrist and no symptoms of peripherovascular insufficiency in the arms.
Dr. Chilczuk advised that the recent MRI scan revealed the presence of disc osteophyte
preexisting formation at the C5-6 level on the right side and C6-7 level on the left side, with no
spinal stenosis or neural foraminal narrowing at both levels. He opined that these were
preexisting changes and no other gross abnormalities were detected. Dr. Chilczuk took appellant
off work for another three weeks.
In a May 31, 2007 report, Dr. Chilczuk noted that appellant had mild to moderate
improvement and that she has proceeded with a chiropractic approach and physical therapy. He
noted that there was no reference to new symptoms. Dr. Chilczuk stated that there was no reason
to suspect any significant structural abnormality. While appellant had been off work for several
2

The employing establishment paid appellant continuation of pay through May 4, 2007.

2

weeks and had some residual discomfort, this should not prevent her from returning to work.
Dr. Chilczuk stated, however, she would be held off work for another month while she continued
with chiropractic and physical therapy activities. He reported examination findings of: normal
posture, normal gait, full cervical range of motion, mild diffuse discomfort on extremes in all
directions, negative compression and Spurling test, normal neurological upper extremity
examination, full bilateral shoulder range of motion with mild discomfort over the right on
extreme flexion extension and abduction, full and nontender right elbow and wrist range of
motion and mild discomfort and negative contralateral testing of the right elbow.
In a June 8, 2007 report, Dr. Garry W. Baldwin, a chiropractor, noted appellant’s history
of injury and her treatment plan. He advised that her condition had improved, but her progress
was slow. For this reason, Dr. Baldwin agreed with appellant’s treating physician that she
should be off work for another month. On June 29, 2007 Dr. Baldwin advised that she could
return to full duty on July 2, 2007 with five-minute breaks every hour for stretching. In a
July 18, 2007 letter, the employing establishment noted it could accommodate her restrictions.
On June 29, 2007 Dr. Chilczuk reported appellant had mild residual discomfort primarily
over her right elbow, diffuse in distribution. He stated that she had an essential normal
examination and could return to work full time at her regular duties on July 2, 2007. In a
July 27, 2007 report, Dr. Chilczuk noted that appellant returned to full-duty work on July 2, 2007
and indicated an aggravation. He noted that she had been working full time or part time
depending on her discomfort and that ergonomic changes to her workstation had not yet been
implemented. Appellant had normal gait, full cervical range of motion, negative compression
and Spurling test, full shoulder, elbow and wrist range of motion, moderate tenderness over the
right lateral epicondyle and negative Phelan and Tinel’s tests at the wrists. Dr. Chilczuk
indicated that she could work regular duties on a part-time basis for four hours a day with a
10-minute stretching break every hour.
Appellant was referred to Dr. Patrick Bays, an osteopath and orthopedic surgeon, for a
second opinion evaluation. In an August 2, 2007 report, Dr. Bays noted the history of injury,
reviewed the medical record and statement of facts and set forth findings. Based on a May 17,
2007 MRI scan, he diagnosed noncompressive C3-4, C4-5 central disc bulging/protrusions, C5-6
central right posterolateral disc osteophyte complex with resultant mild central canal and right
lateral recess stenosis and no evidence of nerve root impingement, with C6-7 paracentral disc
osteophyte complex and mild central canal stenosis, which he opined were preexisting and
unrelated to the March 20, 2007 injury. Dr. Bays also diagnosed cervical subluxation and right
arm strain, by history, due to the March 20, 2007 incident; with significant and profound
symptom magnification with subjective complaints far out of proportion to the objective findings
and nonphysiologic pain behavior. He reported that appellant had a normal objective cervical
spine examination with no diagnosable cervical spine condition. As to her right arm, her
complaints were nonanatomic, out of proportion to objective findings and the constellation of
symptoms objectively fit no specific diagnosis. Dr. Bays found the accepted right arm strain and
cervical subluxation had resolved and that appellant could resume full-duty regular work. He
advised her disability since May 7, 2007 was not supported by his examination and the history of
the claim.

3

On August 16, 2007 the Office proposed to terminate appellant’s medical benefits and
wage-loss compensation.
Appellant submitted additional reports. On August 17, 2007 Dr. Chilczuk noted that she
had been working four hours daily but her symptomatology persisted despite extensive
conservative treatment. He recommended an electromyogram (EMG) of the right arm even
though appellant’s presentation was atypical. Dr. Chilczuk also suggested a psychiatry
consultation since structurally no significant abnormalities had been found for her symptoms.
He released appellant to full duty September 4, 2007. Appellant returned to work full duty
September 6, 2007.
In a September 6, 2007 report, Dr. Baldwin questioned how Dr. Bays was able to
determine proper physical restrictions three months before he evaluated appellant. He opined
that she had to stop work as her work duties significantly aggravated her cervical/upper
extremity condition. Dr. Baldwin explained that, while appellant’s position was “sedentary,” she
had to continually sit, use the telephone, keyboard and computer at work. He stated that this
position was biomechanically poor, caused extreme pressure on the cervical and thoracic spine
and aggravated her condition. Dr. Baldwin stated that he agreed with Dr. Chilczuk that
appellant’s progress would have been slower if she had continued with her work duties as it was
possible that she would have incurred further soft tissue injuries due to the inability to rest her
right arm. He indicated that appellant was approaching maximum chiropractic improvement.
In a September 18, 2007 decision, the Office finalized the termination of appellant’s
wage-loss compensation and medical benefits.
On October 17, 2007 appellant requested an oral hearing, which was held on
March 28, 2008. She submitted an October 8, 2007 statement and medical reports. In a July 30,
2007 report, Dr. Baldwin noted the history of injury and noted reviewing x-rays. He opined,
based on his examination findings, that appellant had a cervicothoracic sprain/strain injury
secondary to a cervical and thoracic subluxation as a result of the March 20, 2007 injury. This
was associated with cervicalgia, mid back pain, headaches, cervical radiculitis and muscle spasm
in the cervical spine and was complicated by spinal misalignment. Dr. Baldwin also indicated
that appellant had a sprain/strain injury to her right arm. He recommended chiropractic
adjustment, massage and physical therapy.
In an August 30, 2007 report, Dr. Chilczuk disagreed with Dr. Bays’ opinion. He opined
that, instead of symptom magnification, there was a psychological component. Dr. Chilczuk
recommended a psychiatric evaluation to rule out work-related stressors and a right arm EMG to
rule out peripheral neuropathy. He also objected to Dr. Bays making a retroactive determination
as to recurrent disability as Dr. Bays examined appellant after she had already stopped work on

4

May 7, 2007. Progress reports dated June 29, August 2 and 17 and September 6 and 27, 2007,
were submitted.3
By decision dated July 14, 2008, an Office hearing representative reversed the Office’s
September 18, 2007 decision with regard to the termination of compensation benefits. The
hearing representative found a conflict in medical opinion between Dr. Bays, for the Office and
Drs. Baldwin and Chilczuk for appellant, as to her residual and whether her cervical spine
subluxation continued. The Office was directed to consider the issue of a recurrence of disability
as of May 7, 2007. On remand, it reinstated medical benefits.
The Office received additional progress reports from Dr. Chilczuk.
In a November 6, 2009 decision, the Office denied the claim for a recurrence of disability
commencing May 7, 2007 on the grounds the medical evidence was insufficient to establish
causal relation.
Appellant requested a hearing which was changed to a review of the written record.4 In
an April 6, 2010 report, Dr. M.E. Goodrich, a Board-certified radiologist, noted that an EMG and
nerve conduction study showed evidence of bilateral carpal tunnel syndrome and left Guyon’s
canal syndrome. He stated that, when compared to the September 2007 study, the median nerve
distal latencies were much more prolonged on the present study which was consistent with a
worsening of bilateral carpal tunnel syndrome.
By decision dated April 30, 2010, an Office hearing representative affirmed the
November 6, 2009 recurrence decision.5
LEGAL PRECEDENT
The Board notes that the term disability, as used in the Act, means incapacity, because of
an employment injury, to earn the wages that the employee was receiving at the time of injury.6
Whether a particular injury caused an employee disability for employment is a medical issue

3

On December 27, 2007 appellant was injured when she walked into a glass door. Under file number
xxxxxx221, the Office accepted facial contusion, closed head injury and concussion. Appellant stopped work
December 27, 2007 and worked intermittently through August 28, 2008, when she stopped all work. The Office
terminated compensation benefits on June 2, 2009. It combined file number xxxxx221 with the file for the present
claim.
4

A hearing was scheduled for February 26, 2010 but, when appellant requested postponement on February 11,
2010, the Office found that the reason provided did not comport with 20 C.F.R. § 10.622(c) and it changed her
request to that of a review of the written record.
5

The hearing representative noted that the Office had been unable to locate an impartial medical specialist to
address the conflict in medical evidence as to whether a cervical subluxation still existed. He directed the Office
resolve this matter and issue an appropriate decision. The issue of whether appellant has any continuing workrelated condition and disability, beyond the claimed recurrence of disability, is not presently before the Board as no
final decision had been rendered at the time of appellant’s appeal. 20 C.F.R. § 501.2(c).
6

Patricia A. Keller, 45 ECAB 278 (1993).

5

which must be resolved by competent medical evidence.7 When the medical evidence
establishes that the residuals of an employment injury are such that, from a medical standpoint,
they prevent the employee from continuing in the employment held when injured, the employee
is entitled to compensation for any loss of wage-earning capacity resulting from such incapacity.8
Recurrence of disability means an inability to work after an employee has returned to work,
caused by a spontaneous change in a medical condition which had resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.9
An individual who claims a recurrence of disability due to an accepted employmentrelated injury has the burden of establishing by the weight of the substantial, reliable and
probative evidence that the disability for which compensation is claimed is causally related to the
accepted injury.10 This burden includes the necessity of furnishing medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes
that the disabling condition is causally related to the employment injury and supports that
conclusion with sound medical rationale.11 Where no such rationale is present, medical evidence
is of diminished probative value.12
For conditions not accepted by the Office as being employment related, it is the
employee’s burden to provide rationalized medical evidence sufficient to establish causal
relation, not the Office’s burden to disprove such relationship.13
ANAYSIS
The Office accepted that appellant sustained a right arm strain and cervical subluxation
on March 20, 2007 in the performance of duty. She stopped work May 7, 2007 and claimed a
recurrence of disability. The record reflects appellant’s position as a customer service
representative was a sedentary position. The issue before the Board is whether she established
that she sustained a recurrence of disability as of May 7, 2007 causally related to her accepted
work injuries.
Dr. Chilczuk, appellant’s treating physician, held her off work starting May 7, 2007,
released her to full-time duties eight hours a day on July 2, 2007 and then subsequently opined
on July 27, 2007 that she was only able to work part time four hours a day. Generally, findings
on examination are needed to justify a physician’s opinion that an employee is disabled from
7

Debra A. Kirk-Littleton, 41 ECAB 703 (1990).

8

Clement Jay After Buffalo, 45 ECAB 707 (1994).

9

20 C.F.R. § 10.5(x); see S.F., 59 ECAB 525 (2008).

10

Charles H. Tomaszewski, 39 ECAB 461, 467 (1988); Dominic M. DeScala, 37 ECAB 369, 372 (1986).

11

Mary S. Brock, 40 ECAB 461, 471-72 (1989); Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

12

Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

13

Alice J. Tysinger, 51 ECAB 638 (2000).

6

work.14 In reports dated May 7, 22 and 31 and July 27, 2007, Dr. Chilczuk reported essentially
normal findings on examination, apart from mild right upper extremity weakness and tenderness
at the right lateral epicondyle. He did not explain how such findings were sufficient to disable
appellant from her sedentary job as of May 7, 2007. In a July 27, 2007 report, Dr. Chilczuk
suggested the lack of ergonomic changes to her workstation was the reason for her erratic work
schedule depending on her comfort level; but he offered no rationale or explanation supporting
work on a part-time basis or any period of disability due to her accepted employment injuries.
Medical evidence that does not offer an opinion regarding the cause of an employee’s condition
is of limited probative value on the issue of causal relationship.15 On May 31, 2007 Dr. Chilczuk
noted that appellant’s residual discomfort should not prevent her return to work as there was no
significant structural abnormality and there were no new symptoms. He subsequently
recommended a psychiatric evaluation and a diagnostic study to rule out a possible psychological
component or peripheral neuropathy. Dr. Chilczuk failed to explain how residuals of the
accepted right arm strain or cervical subluxation disabled appellant commencing May 7, 2007.
He did not provide any findings supporting causal relation of her disability to the March 20,
2007 injury.16 Dr. Chilczuk’s reports are insufficient to establish a recurrence of disability.
In a June 8, 2007 report, Dr. Baldwin advised that appellant was held off work because
her progress in improving was slow. In his September 6, 2007 report, he stated it was possible
she would have incurred further soft tissue injuries had she continued with her work duties.
However, Dr. Baldwin’s general caution against appellant’s return to work is prophylactic in
nature. The Board has held that fear of future injury is not compensable under the Act.17
Dr. Baldwin further indicated in his September 6, 2007 report that appellant’s work duties had
significantly aggravated her cervical/upper extremity condition. He explained that her sedentary
position was biomechanically poor and caused extreme pressure on the cervical and thoracic
spine and the activities sitting and using the telephone, keyboard and computer had aggravated
her condition. However, Dr. Baldwin’s report is conclusory and insufficient to establish
appellant’s claim as he did not provide a rationalized opinion explaining the reasons why her
recurrent condition and disability was due to the accepted cervical subluxation.18 Moreover, he
provided no time frame for appellant’s disability.19 On July 30, 2007 Dr. Baldwin opined that
appellant sustained a cervicothoracic sprain/strain secondary to a cervical and thoracic
14

Laurie S. Swanson, 53 ECAB 517 (2002).

15

Willie M. Miller, 53 ECAB 697 (2002).

16

See Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB 332 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
17

See Mary Geary, 43 ECAB 300, 309 (1991); Pat Lazzara, 31 ECAB 1169, 1174 (1980) (finding that
appellant’s fear of a recurrence of disability upon return to work is not a basis for compensation).
18

See Franklin D. Haislah, supra note 16. Dr. Baldwin, a chiropractor, also is not competent to diagnose
disorders of the extremities. George E. Williams, 44 ECAB 530, 534 (1993). See 5 U.S.C. § 8101(2).
19

Fereidoon Kharabi, 52 ECAB 291 (2001); see also David H. Goss, 32 ECAB 24 (1980). The Board will not
require the Office to pay compensation in the absence of medical evidence directly addressing the particular period
of disability for which compensation is sought. To do so would essentially allow employees to self-certify their
disability and entitlement to compensation.

7

subluxation as a result of the March 20, 2007 work injury. However, the Office only accepted a
cervical subluxation. Dr. Baldwin did not adequately explain how the cervicothoracic
sprain/strain was causally related to the accepted work injury. Additionally, he did not address
any specific date of a recurrence of disability or change in appellant’s accepted conditions,
arising from the employment injury, which prevented her from performing her sedentary
position. Therefore, Dr. Baldwin’s reports are insufficient to establish appellant’s claim.
Dr. Goodrich’s diagnostic test report of April 6, 2010 noted diagnoses but failed to
provide an opinion on causal relationship between the claimed period of disability and the
accepted condition. The Board has held that a physician’s opinion, which does not address
causal relationship, is of diminished probative value.20 Additionally, the Office did not accept
the condition of bilateral carpal tunnel syndrome. Thus, Dr. Goodrich’s report is insufficient to
establish appellant’s claim.
It is appellant’s burden of proof to provide evidence from a qualified physician to support
the recurrence of total disability for any period of time. She failed to submit rationalized medical
evidence establishing that her claimed recurrence of disability commencing May 7, 2007 was
causally related to the accepted employment injury and therefore the Office properly denied her
claim for compensation. Other medical evidence of record, either does not address causal
relationship or negates it as is the case with Dr. Bays’ opinion.
On appeal, appellant contends that not all the medical evidence was considered in her
claim. The Board notes all relevant evidence for the claimed period of the recurrence was
considered. This does not include evidence resulting from her December 27, 2007 work injury,
which occurred subsequent to the claimed recurrence. For the reasons stated above, the medical
evidence of record was insufficient to establish appellant’s claimed recurrence of disability.
CONCLUSION
The Board finds that appellant has not established that she is entitled to wage-loss
benefits for total disability beginning May 7, 2007 causally related to her accepted employment
injuries.

20

See A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).

8

ORDER
IT IS HEREBY ORDERED THAT the April 30, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 1, 2011
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

9


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

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

Docket No. 15-1898
Issued: April 15, 2016

Case Submitted on the Record

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

JURISDICTION
On September 18, 2015 appellant, through counsel, filed a timely appeal of a July 27,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish modification of her
September 10, 2009 wage-earning capacity.
FACTUAL HISTORY
On November 9, 2005 appellant, then a 45-year-old retail associate and former sales and
service associate, filed an occupational disease claim (Form CA-2) alleging that upon returning
to work on her new job assignment, her physician provided permanent medical restrictions and
1

5 U.S.C. § 8101 et seq.

requested ergonomic equipment. She noted, however, that the employing establishment had
failed to provide her with the chair requested by her physician. Appellant explained that as a
result of this failure to honor her medical restrictions, she developed low back pain in the
performance of her duties. The employing establishment explained that she was a part-time
flexible clerk and her duties were to work the window and mark up.
OWCP accepted the claim for exacerbation of somatic dysfunction (lumbar and sacral).
Appellant stopped work on November 16, 2007. On December 12, 2008 OWCP expanded the
claim to include exacerbation recurrent major depression.2 Appellant received wage-loss
compensation benefits.3
On February 26, 2009 appellant completed a form indicating that she did not wish to be
involuntarily reassigned to another installation and wished to convert to part-time regular in lieu
of the involuntary assignment. On March 4, 2009 the employing establishment provided
appellant a revised modified permanent assignment as a part-tine regular modified mail
processing clerk. It explained the details of her position which included that she worked 30
hours per week at a rate of $24.40 per hour at a level 6, Step M.4
On July 13, 2009 the employing establishment indicated that appellant was working as a
part-time flexible employee (PTF) before her work stoppage, working approximately 20 to 30
hours each week. It was noted that for the period August 16, 2008 to February 27, 2009,
appellant was a full-time, regular employee, who was guaranteed 40 hours per week. The
employing establishment noted that any other employee in this situation with the same level/step
would earn the same base pay. During this time, appellant earned $27,170.00 in base pay, and
zero in night differential and Sunday premium. Furthermore, she was off work from March 1,
2008 through August 15, 2008 in a leave-without-pay status due to the work injury and received
wage-loss compensation. The employing establishment explained that, effective February 28,
2009, pursuant to her request appellant was moved into a fixed, part-time regular position, where
she worked 30 hours per week at a rate of $24.40 per hour at a level 6, Step M. It advised that
she should be compensated for the other 10 hours per week.
On September 10, 2009 OWCP found that appellant’s actual earnings as a part-time
regular modified mail processing clerk, effective February 28, 2009, fairly and reasonably
2

Appellant has current conditions of major depression and adjustment reaction; and lumbar and sacral condition.

3

The record reflects that appellant was working full time 40 hours a week until November 2007. In 2008 she was
provided a modified position of 40 hours per week as a lobby clerk. Appellant noted that in February 2009 she was
provided a part-time position of a mail processing clerk for 35 hours per week.
4

The description of duties included that she screen customers entering the lobby to identify eligible automated
postal center (APC) transactions, know what APC transactions were available for the customer, and educated the
customer regarding the transactions. Additionally, she was to monitor the drop box, provide feedback to customers
and employees, encourage the use of APC machine by customers, maintain the appearance of the store by setting up,
arranging and replenishing merchandise and postal forms, be neat and presentable, wear something that identified
her as an employee, practice good customer service, and use the greet, inquire, suggest and thank (GIST) techniques
to communicate with customers. The physical requirements included that she stand/sit and walk intermittently, use
a chair with support as necessary and push/pull or lift up to 15 pounds intermittently.

2

represented her wage-earning capacity. It found that, based on actual earnings, appellant no
longer had a loss of wage-earning capacity and reduced her wage-loss benefits to zero.
On September 14, 2009 counsel for appellant requested a telephonic hearing, which was
held on December 10, 2009. Appellant continued filing claims for wage-loss compensation.
In a February 22, 2010 decision, OWCP denied appellant’s claims for wage-loss
compensation. It referred to the September 10, 2009 wage-earning capacity decision as one that
denied claims for wage-loss compensation beginning February 28, 2009.
Counsel filed an application for review of the February 22, 2010 decision on
March 15, 2010.
In an April 21, 2011 order remanding case, the Board found that appellant’s wage-loss
claims were actually requesting modification of the wage-earning capacity decision. The Board
set aside the February 22, 2010 decision and remanded the case for OWCP to apply the proper
standard of review and to issue an appropriate merit decision.5
Upon remand, OWCP further reviewed the record and by decision dated October 1, 2014,
OWCP denied modification of the September 10, 2009 wage-earning capacity decision, as
appellant had not met any of the three criteria for modifying the decision.
On October 6, 2014 appellant requested a telephonic hearing, which was held on
April 17, 2015. Counsel argued that OWCP failed to address whether the original rating was in
error or whether she was retrained or otherwise vocationally rehabilitated. He further argued that
appellant was retrained for another job which resulted in a loss of her wage-earning capacity.
Counsel indicated that the original position was based upon a modified make-shift position and
did not provide the same amount of work hours as her original preinjury position and that she
was entitled to compensation for the difference in work hours. Appellant testified that she had
accepted the part-time job and was placed in the position as a result of her injury. She explained
that the employing establishment was transferring clerks to various locations and she was unable
to transfer as a result of the medication she was taking, which affected her driving ability.
By decision dated July 27, 2015, the OWCP hearing representative affirmed the
October 1, 2014 decision, finding that appellant had not established a basis for modifying the
2009 loss of wage-earning capacity. She found that the job on which the wage-earning capacity
was based was a valid job and not odd-lot or makeshift.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn

5

Docket No. 10-1146 (issued April 21, 2011).

3

wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.6
OWCP procedures provide that, if a formal loss of wage-earning capacity decision has
been issued, the rating should be left in place unless the claimant requests resumption of
compensation for total wage loss. In this instance, the claims examiner will need to evaluate the
request according to the customary criteria for modifying a formal loss of wage-earning
capacity.7
Chapter 2.1501 of the procedure manual contains provisions regarding the modification
of a formal loss of wage-earning capacity. The relevant part provides that a formal loss of wageearning capacity will be modified when: (1) the original rating was in error; (2) the claimant’s
medical condition has changed; or (3) the claimant has been vocationally rehabilitated. OWCP
procedures further provide that the party seeking modification of a formal loss of wage-earning
capacity decision has the burden to prove that one of these criteria has been met. If OWCP is
seeking modification, it must establish that the original rating was in error, that the injury-related
condition has improved or that the claimant has been vocationally rehabilitated.8
ANALYSIS
On September 10, 2009 OWCP found that appellant’s actual earnings as a part-time
regular modified mail processing clerk, effective February 28, 2009, fairly and reasonably
represented her wage-earning capacity and reduced her wage-loss benefits to zero.
Counsel argued that OWCP failed to address whether the original rating was in error or
whether appellant was retrained or vocationally rehabilitated. He further argued that she had
been retrained for another job that resulted in a loss of her wage-earning capacity, that the
original position was based upon a modified make-shift position and did not provide the same
amount of work hours as her original preinjury position, and that she was entitled to
compensation for the difference in work hours.
The Board finds no error in the original wage-earning capacity determination. The record
reflects and appellant does not contest that she had the capacity to earn wages as modified mail
processing clerk. Counsel argues that she should have been rated based upon a 40-hour
workweek and that she should be allowed 10 hours per week additional compensation. The
Board finds that this position was medically and vocationally suitable and reasonably represented
her wage-earning capacity. Furthermore, appellant requested to be transferred to this position
and the employing establishment confirmed in a July 13, 2009 letter that appellant was a parttime flexible employee (PTF) at the date of injury and before her work stoppage, working

6

Katherine T. Kreger, 55 ECAB 633 (2004).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Wage-Earning Capacity, Chapter 2.1501
(June 2013).
8

Id. at Chapter 2.1501.3.a(1) (June 2013).

4

approximately 20 to 30 hours each week. The Board notes that her wage-earning capacity was
based upon a 30-hour workweek.
Counsel’s argument that appellant was retrained for another job which resulted in a loss of
her wage-earning capacity is contradicted by the record. Appellant requested to be transferred to
the part-time modified position. Her argument that she wanted to continue in her full-time
position but was concerned about being transferred due to her medication is not supported by the
record.
Counsel also argued that the original position was based upon a modified make-shift
position and did not provide the same amount of work hours as her original preinjury position.
He argued that she was entitled to compensation for the difference in work hours. The Board
finds that the modified mail processing clerk job which appellant accepted contained a clear
position description, identified the title of the job, had a set schedule, and had clearly articulated
the duties of the position. It was not a temporary position. In fact appellant had worked in this
position since February 28, 2009. She has provided no evidence that she was unable to perform
the duties of the modified position, there is no indication that appellant needed assistance from
her supervisor or his coworkers to fulfill the assigned duties of her position or that she worked in
a self-directed manner or schedule. The Board finds that OWCP has established that the position
was a bona fide position.
The Board further notes that counsel did not argue that there was material change in the
injury-related condition or argue that her accepted conditions had changed so as to prevent her
from performing the job of a modified mail processing clerk.
The burden of proof is on the party attempting to show a modification of the wageearning capacity. In this case, appellant has not submitted any medical evidence establishing a
material change in the nature and extent of her injury-related conditions. She has not shown that
she was retrained or otherwise vocationally rehabilitated or that the original wage-earning
capacity was erroneous.9 Appellant therefore did not meet her burden of proof to establish that
modification of the wage-earning capacity determination was warranted.
CONCLUSION
The Board finds that appellant has failed to establish modification of the September 10,
2009 wage-earning capacity.

9

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the July 27, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 15, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Albany, NY, Employer
__________________________________________

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

Docket No. 10-1650
Issued: May 2, 2011

Case Submitted on the Record

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

JURISDICTION
On June 8, 2010 appellant, through counsel, filed a timely appeal from a May 18, 2010
merit decision of the Office of Workers’ Compensation Programs which terminated her
entitlement to monetary compensation benefits on the grounds that she had refused an offer of
suitable employment. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether the Office properly terminated appellant’s entitlement to monetary
compensation benefits effective May 18, 2010 on the grounds that she refused an offer of
suitable work.
On appeal, appellant’s counsel contends that well-rationalized medical opinion supports
that appellant did not have the physical or medical ability to perform the offered position.
1

5 U.S.C. § 8101 et seq.

Termination of her compensation without the benefit of a referee medical examination was
improper.
FACTUAL HISTORY
On June 10, 2009 appellant, then a 43-year-old diagnostic radiological technician, filed a
traumatic injury claim alleging that on June 8, 2010 she sustained an acute chronic low back
strain while helping a patient off the computerized tomography table. By letter dated August 12,
2009, the Office accepted her claim for sprain of back, lumbar region. It paid compensation and
medical benefits.
In a September 14, 2009 report, Dr. William H. Montgomery, appellant’s treating Boardcertified orthopedic surgeon, noted that appellant had a work-related injury and had radiating
right groin pain as well as pain that radiated down the leg into her foot where she experienced
tingling. He noted that the pain hurt her all time. Dr. Montgomery believed that appellant might
have an intrinsic nerve disorder and that he was going to refer her to a neurologist. He noted that
he was going to keep her out of work until she was evaluated by the neurologist.
In an October 29, 2009 report, Dr. Jeffrey J. Burdick, a Board-certified neurologist,
indicated that appellant described radicular symptoms following an injury initially with severe
back pain. He found no evidence of disc herniation on examination. Dr. Burdick suggested
further evaluation with an electromyogram (EMG) and nerve conduction study to further
evaluate appellant’s symptoms.
In a November 10, 2009 attending physician’s report, Dr. Burdick listed his findings as
facet arthropathy L4-5, L5-5, antalgic gait, limited movement of right lower extremities and
osteoarthritis of the right hip. He diagnosed lumbago pain in limb and paresthesias. Dr. Burdick
believed that the condition was caused or aggravated by appellant’s work activity. He listed her
period of total disability as commencing June 8, 2009. Dr. Burdick noted that appellant had not
been advised that she could return to work.
The Office referred appellant to Dr. Edwin Mohler, a Board-certified orthopedic surgeon,
for a second opinion In a report dated December 18, 2009, Dr. Mohler listed his diagnostic
impressions as: (1) status post lumbosacral sprain with recurring right thoracolumbar muscle
spasm and paresthesias in the right lower extremity, rule out piriformis syndrome; (2) status post
strain of the right hip with recurring arthralgia; and (3) preexisting facet arthropathy of the
lumbar spine by radiographic studies. He opined that the accepted condition was still active.
Dr. Mohler noted that there was a current disability from work due to appellant’s work-related
conditions as well as due to her obesity and deconditioning with the facet arthropathy identified
in her lumbosacral spine. Appellant could return to work with restrictions and that 50 percent of
the restrictions related to the injury of June 8, 2009 and 50 percent related to her deconditioning,
obesity and facet arthropathy. Dr. Mohler stated that lumbosacral sprains and muscular strain
with appropriate rehabilitation should resolve within one year of the date of the injury.
Appellant’s preexisting facet arthropathy was a permanent condition and had a natural history of
progression. It was best contained by appropriate spinal body mechanics, appropriate body
width, good cardiopulmonary and vascular reconditioning by muscle strengthening of the back
extensors, hip extensors, abdominals and core strengthening, strengthening of the upper and

2

lower extremities and in participating in a progressive reconditioning routine. Dr. Mohler noted
that, with these factors in place, one would anticipate resolution of the sprain and strain. He
completed a work capacity evaluation indicating that appellant was restricted to four hours of
sitting and walking; two hours of standing, bending and stooping; one hour of pushing up to
40 pounds, one hour of pulling up to 30 pounds and one hour of lifting up to 20 pounds.
Dr. Mohler noted that she could not operate a motor vehicle at work.
The Office also referred appellant to Dr. Patrick J. Hughes, a Board-certified neurologist,
for a second opinion. Dr. Hughes opined that she had no objective findings on neurological
examination or her imaging studies to substantiate continuing complaints of disabling pain. He
concluded that the accepted condition of lumbar strain had resolved by December 2009.
Dr. Hughes found no current disability from work due to the accepted conditions or residuals or
to claimed factors of employment. He did note that appellant was complaining of neck pain
radiating down her arm which would indicate a possible cervical radiculopathy due to cervical
spondylosis or a cervical disc which would result in a disability. Dr. Hughes noted that she
would need additional diagnostic testing to establish a diagnosis. He advised that any disability
would be due to appellant’s neck and arm pain and not due to the lumbar strain.
Dr. Burdick interpreted a December 29, 2009 EMG as evincing denervation change in the
right lumbosacral paraspinal muscles and in the anterior myotomes consistent with a right S1
radiculopathy. He noted that the nerve conduction portion of the study was normal and without
evidence of peripheral neuropathy. In a note of the same date, Dr. Burdick indicated that
appellant should remain off work.
On February 25, 2010 the employing establishment made an offer of a full-time
temporary alternative-duty assignment for work as a diagnostic radiological technologist
performing clerical duties. The position had limitations of four hours of sitting and walking, two
hours of standing, bending and stooping, one hour of pushing no more that 40 pounds, one hour
of pulling no more than 30 pounds and one hour of lifting no more than 20 pounds. On
March 10, 2010 appellant declined the position, stating that she was medically unable to accept
it.
In a February 4, 2010 report, Dr. Montgomery stated that he reviewed a new magnetic
resonance imaging (MRI) scan that did not show any compression centrally or foraminally. He
noted that appellant had pain that radiated into her right and a component of right anterior thigh
pain, perhaps piriformis syndrome. Dr. Montgomery noted that he was not exactly sure what
was causing the pain and would like her to be seen by one of his nonoperative colleagues.
In a February 10, 2010 note, Dr. Burdick noted that appellant had ongoing pain in her
right upper and lower extremity following a work-related accident. He indicated that she should
continue physical therapy and Celebrex. In another note of the same date, Dr. Burdick advised
that appellant remained under his professional care and was to remain out of work until
March 31, 2010.
In a February 17, 2010 report, Dr. Charles J. Buttaci, a Board-certified physiatrist with a
subspecialty in pain medicine, saw appellant at the request of Dr. Montgomery. He listed his
impression as a June 8, 2009 work-related injury consisting of back pain and ongoing right limb

3

neuropathic symptoms. Dr. Buttaci noted quite a bit of neuropathic symptoms in appellant’s
right leg which were limiting her activities at work and at home. He noted no significant neural
compression on the MRI scan, but that the EMG was a concern for right S1 radiculopathy.
Dr. Buttaci did not believe that appellant could return to full duty.
By letter dated February 25, 2010, the employing establishment offered appellant a
temporary alternative-duty assignment as a diagnostic radiological technologist, with physical
limitations of sitting and walking four hours, standing, bending and stooping two hours, pushing
one hour of no more than 40 pounds, pulling, one hour, limited to no more than 30 pounds and
lifting, one hour, limited to no more than 20 pounds. It noted that she would be unable to
tolerate repositioning of lifting patients, rather she would perform clerical duties in the Release
of Information Unit. On March 10, 2010 appellant rejected the position, contending she was
medically unable to accept it.
By letter dated March 25, 2010, the Office informed appellant that it found the clerical
position offered as a diagnostic radiological technologist suitable and within her work
capabilities. It noted that Dr. Mohler found that she was capable of completing the work duties.
The Office informed appellant that she had 30 days to either accept the position or provide an
explanation or reasons for refusing it. It explained that, if at the expiration of 30 days she failed
to accept the position or an explanation as to why her reasons for refusing the job were justified,
her right to further compensation would be jeopardized.
By letter dated March 31, 2010, appellant’s attorney contended that appellant was
physically and medically unable to accept the offered position, as the duties of the assignment
were inconsistent with her medical restrictions and disabilities.
By letter dated April 26, 2010, the Office informed appellant that it found her reasons for
rejecting the job invalid and offered her 15 additional days to accept the position. It informed
her that, if she did not accept the position, her entitlement to wage loss and schedule award
benefits would be terminated.
In an April 30, 2010 report, Dr. Tahir Effendi, a treating Board-certified internist, noted
that appellant complained of ongoing pain, numbness and tingling. Electroencephalography
studies showed evidence of denervation changes in the right cervical paraspinal muscle and in
the anterior myotomes consistent with right C6 radiculopathy. Dr. Effendi found that appellant
remained totally disabled.
In a May 5, 2010 medical report, Dr. Burdick listed his impression as ongoing pain in the
right upper and lower extremities with associated neck pain following a work-related accident.
He believed that both appellant’s neck problems and her lower extremity symptoms were related
to her work accident which occurred when she was trying to move a patient.
By decision dated May 18, 2010, the Office terminated appellant’s compensation benefits
effective that date due to her failure to accept suitable employment.

4

LEGAL PRECEDENT
The Office accepts a claim, it has the burden of justifying termination or modification of
compensation benefits.2 Section 8106(c)(2) of the Act3 provide that a partially disabled
employee who refuses or neglects to work after suitable work is offered to, procured by or
secured for the employee is not entitled to compensation.4 The Office may not terminate
compensation without establishing that the disability ceased or that it is no longer related to the
employment.5 The Board has held that as monetary compensation payable to an employee under
section 8107 are payments made from the Employees Compensation Fund, they are subject to
the penalty provision of section 8106(c).6
Section 10.517(a) of the Act’s implementing regulations provide that an employee who
refused to work after suitable work has been offered to or secured for the employee, has the
burden of showing that such refusal or failure to work was reasonable or justified.7 Pursuant to
section 10.516, the employee shall be provided with the opportunity to make such a showing
before a determination is made with respect to termination of entitlement to compensation.8
Section 8123(a) of the Act provides in pertinent part: If there is a disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.9 Where 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.10
ANALYSIS
The Office accepted appellant’s claim for sprain of the back, lumbar region and paid
compensation and medical benefits. The employing establishment offered her a position as a
limited-duty diagnostic radiological technologist in accordance with the limitations set forth by
one of the second opinion physicians, Dr. Mohler, who found that she could return to work with
restrictions. The Office found that this position was suitable, provided proper notice prior to
termination of compensation, effective May 18, 2010, due to her failure to accept suitable
2

Barry Neutach, 54 ECAB 313 (2003); Lawrence D. Price, 47 ECAB 120 (1995).

3

5 U.S.C. §§ 8101-8193.

4

Id. at § 8106(c)(2); see also Linda D. Guerrero, 54 ECAB 556 (2003).

5

Ronald M. Jones, 52 ECAB 190 (2000); Arthur R. Reck, 47 ECAB 339 (1995).

6

Sandra A. Sutphen, 49 ECAB 174 (1997); Stephen R. Lubin, 43 ECAB 564 (1992).

7

20 C.F.R. § 10.517(a); see Ronald M. Jones, supra note 5.

8

Id. at § 10.516; see Kathy E. Murray, 55 ECAB 288 (2004).

9

5 U.S.C. § 8123(a).

10

William C. Bush, 40 ECAB 1065, 1075 (1989).

5

employment. The Board finds that the Office erred in terminating appellant’s compensation due
to a conflict in medical opinion.
The Office bears the burden of proof to justify imposing the penalty of terminating
compensation.11 It has the burden of showing that the work offered to and refused by appellant
was suitable.12
Appellant’s physicians found that appellant was totally disabled due to her accepted work
injury. On September 14, 2009 Dr. Montgomery advised that she was still suffering from the
effects of her work injury and he kept her from work until evaluated by a neurologist. He
referred appellant to Dr. Burdick for a neurological evaluation. In October 29, 2009 report,
Dr. Burdick diagnosed lumbago pain in the limb and paresthesias which he believed was caused
or aggravated by her work activity. He stated that appellant was totally disabled and could not
return to work. In December 29, 2009 report, Dr. Burdick reiterated that she should remain off
work. In February 10, 2010 notes, appellant still had ongoing pain in her right upper and lower
extremity following a work-related accident and was to remain off work. On April 30, 2010
Dr. Effendi opined that appellant remained 100 percent totally disabled.
The Office found the weight of medical evidence represented by the report of Dr. Mohler,
the second opinion physician. It determined that the position offered by the employing
establishment was suitable as it was within the restrictions as set forth by Dr. Mohler. The Board
finds that a conflict in medical opinion arose between Dr. Mohler and appellant’s attending
physicians.13
Due to the unresolved conflict in medical opinion, the weight of the evidence does not
establish the suitability of the offered position. The Board finds that the Office did not discharge
its burden of proof to justify the termination of appellant’s monetary compensation under section
8106(c)(2). The Board will reverse the May 18, 2010 decision.
CONCLUSION
The Board finds that the Office improperly terminated appellant’s compensation benefits
effective May 18, 2010 on the grounds that she refused an offer of suitable work. There is an
unresolved conflict in medical opinion on whether the position is suitable.

11

Curtis Hall, 45 ECAB 316 (1994).

12

Joyce M. Doll, 53 ECAB 790 (2002).

13

See Craig M. Crenshaw, Jr., 40 ECAB 919 (1989).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 18, 2010 is reversed.
Issued: May 2, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

7