United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
D.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Boston, MA, Employer
_________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-218
Issued: June 12, 2012

Case Submitted on the Record

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

JURISDICTION
On November 10, 2011 appellant timely appealed the October 27, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP), finding that he abandoned
his request for an oral hearing. The most recent merit decision was issued on April 27, 2011,
more than 180 days prior to the filing of this appeal. 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 nonmerit decision.2
ISSUE
The issue is whether appellant abandoned his request for a hearing.

1
2

5 U.S.C. § 8101 et seq.

For final adverse OWCP decisions issued on and after November 19, 2008, a claimant has 180 days to file an
appeal with the Board. See 20 C.F.R. § 501.3(e). Therefore, appellant would have 180 days from April 27, 2011 or
until Monday, October 24, 2011. As he filed his claim on November 10, 2011, the Board has no jurisdiction to
review the April 27, 2011 merit decision.

FACTUAL HISTORY
On July 20, 2010 appellant, then a 53-year-old city letter carrier, claimed that he
sustained injuries to the his head, neck, back and left side when he was struck by a falling storm
door window causing him to fall. He stopped work on July 15, 2010 and returned on
July 19, 2010.
By decision dated April 27, 2011, OWCP denied appellant’s claim. It found that the
medical evidence did not establish a medical condition related to the accepted incident.
On May 24, 2011 appellant requested a hearing. He also submitted additional evidence.
On August 17, 2011 OWCP notified appellant in writing that a hearing was scheduled for
September 20, 2011 at 9:45 a.m. It provided the address of the hearing location and the notice
was mailed to appellant’s address of record.
Appellant did not appear at the scheduled hearing.
By decision dated October 27, 2011, OWCP found that appellant abandoned his
requested hearing. The decision noted that the hearing was scheduled for September 20, 2011,
but he failed to appear as instructed. The decision also found that there was no indication that
appellant contacted OWCP prior or subsequent to the scheduled hearing to explain his failure to
participate. OWCP concluded that appellant abandoned his hearing request.
LEGAL PRECEDENT
Under FECA and its implementing regulations, a claimant who has received a final
adverse decision by OWCP is entitled to receive a hearing upon writing to the address specified
in the decision within 30 days of the date of the decision for which a hearing is sought.3 Unless
otherwise directed in writing by the claims examiner, OWCP’s hearing representative will mail a
notice of the time and place of the hearing to the claimant and any representative at least 30 days
before the scheduled date.4 OWCP has the burden of proving that it mailed notice of a scheduled
hearing to a claimant.5
The authority governing the abandonment of hearings rests with OWCP’s procedure
manual, which provides that a hearing can be abandoned only under very limited circumstances.
All three of the following conditions must be present: the claimant has not requested a
postponement; the claimant has failed to appear at a scheduled hearing; and the claimant has
failed to provide any notification for such failure within 10 days of the scheduled date of the
hearing. Under these circumstances, the Branch of Hearings and Review will issue a formal

3

Id. at § 8124(b)(1); 20 C.F.R. § 10.616(a).

4

20 C.F.R. § 10.617(b).

5

See Michelle R. Littlejohn, 42 ECAB 463 (1991).

2

decision finding that the claimant has abandoned his or her request for a hearing and return the
case to the district OWCP.6
ANALYSIS
By decision dated April 27, 2011, OWCP denied appellant’s traumatic injury claim.
Appellant timely requested a hearing. In an August 17, 2011 letter, OWCP notified appellant of
the time and location for the September 20, 2011 scheduled hearing. The notice was mailed to
his address of record. Appellant did not appear at the appointed time. He did not request a
postponement of the hearing or explain his failure to appear at the hearing within 10 days of the
scheduled hearing date of September 20, 2011. The Board, therefore, finds that appellant
abandoned his request for a hearing.
On appeal, appellant contends that he did not abandon his hearing. He stated that his
daughter had a medical problem and his attorney made an appearance. The Board notes that the
record does not contain any evidence to suggest that appellant contacted OWCP within the
allotted time to alert them of a medical problem or that an authorized attorney entered an
appearance on his behalf. Appellant also requested that his case be processed on its merits.
However, as noted, the Board has no jurisdiction to review the merits of his claim.7
CONCLUSION
The Board finds that OWCP properly found that appellant abandoned his request for a
hearing.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(e) (January 1999). See also G.J., 58 ECAB 651 (2007).
7

See supra note 1.

3

ORDER
IT IS HEREBY ORDERED THAT the October 27, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 12, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION,
Barbourville, KY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 21-0253
Issued: March 24, 2022

Case Submitted on the Record

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

JURISDICTION
On December 10, 2020 appellant filed a timely appeal from a November 16, 2020 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 appellant received an overpayment of compensation in the
amount of $5,022.00 for the period May 26, 2019 through February 29, 2020 for which he was
without fault, because of an underwithholding of optional life insurance (OLI) premiums from his
FECA compensation; and (2) whether OWCP properly denied waiver of recovery of the
overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 18, 2016 appellant, then a 62-year-old underground mine safety and health
inspector, filed a traumatic injury claim (Form CA-1) alleging that on October 13, 2016 he injured
his neck when he slipped and fell onto a mine floor while in the performance of duty. OWCP
accepted the claim for strain of muscle(s) and tendon(s) of the right shoulder rotator cuff (tear) and
later expanded the acceptance of the claim to include aggravation of radiculopathy and spinal
stenosis of the cervical region. It paid appellant wage-loss compensation on the supplemental
rolls, effective November 17, 2016, and then on the periodic rolls effective September 17, 2017.
In a September 27, 2017 letter, OWCP outlined appellant’s entitlement to compensation
benefits. It advised him that it was making deductions for health insurance benefits, basic life
insurance (BLI), and OLI premiums (in the amount of $421.20) from his compensation payments
every 28 days.
On February 25, 2020 the Office of Personnel Management (OPM) informed OWCP that
as a compensationer appellant was eligible to continue Federal Employees’ Group Life Insurance
(FEGLI) coverage in the form of basic, postretirement basic life insurance (PRBLI), and OLI
coverage. The final base salary on which FEGLI was based was $92,316.00. OPM requested
OWCP to deduct for code X0 basic Option A for 75 percent reduction and Option B times five
with no reduction. It noted that appellant’s PRBLI reduction commenced on October 14, 2017.
OPM forwarded an Option B election form that appellant signed on February 14, 2020 freezing all
of his Option B (additional) life insurance at the value as of age 65, to continue for life.
In a preliminary overpayment determination dated April 9, 2020, OWCP notified appellant
that he had received an overpayment of compensation in the amount of $10,819.00 because OLI
and PRBLI premiums after he reached age 65 had not been properly deducted from his FECA
compensation for the period October 14, 2017 through February 29, 2020. It provided an
overpayment calculation. OWCP further advised appellant of its preliminary determination that
he was not at fault in the creation of the overpayment and requested that he complete an
overpayment action request form and an overpayment recovery questionnaire (Form OWCP-20).
Additionally, it notified him that within 30 days of the date of the letter, he could request a
telephone conference, a final decision based on the written evidence, or a prerecoupment hearing.
In a memorandum of telephone call (Form CA-110) dated April 30, 2020, appellant
informed OWCP that OPM had advised him that he had paid BLI and OLI premiums up to age
65. However, deductions should have continued to have been made as of 2019 when he turned 65
years old and not in 2017 as indicated in OPM’s February 25, 2020 letter.
In a May 11, 2020 amended overpayment referral, OWCP noted that its compensation
history records showed that appellant had paid OLI premiums up to May 25, 2019 and that
deductions for OLI and PRBLI premiums began on March 1, 2020. It further noted that the
overpayment occurred from May 26, 2019 to February 29, 2020, 10 periodic roll cycles. As
appellant’s premium for OLI after age 65 was $502.20 every 28-day cycle, the total overpayment
was $5,022.00.

2

OWCP, in a corrected preliminary overpayment determination also dated May 11, 2020,
informed appellant that he had received an overpayment of compensation in the amount of
$5,022.00 because OLI premiums had not been properly deducted after he turned 65 years old on
May 12, 2019 from his FECA compensation for the period May 26, 2019 through
February 29, 2020. It provided an overpayment calculation. OWCP again found that appellant
was not at fault in the creation of the overpayment and requested that he complete an overpayment
action request form containing appeal rights and a Form OWCP-20 and submit supporting
documentation including copies of tax returns, bank account statements, bills and cancelled
checks, pay slips, and other records which supported the income and expenses listed. It again
notified him that he could request a telephone conference, a final decision based on the written
evidence, or a prerecoupment hearing. OWCP advised that, under 20 C.F.R. § 10.438, failure to
submit the requested information within 30 days would result in a denial of waiver of recovery of
the overpayment. However, no financial information was submitted by appellant.
On June 8, 2020 appellant requested a telephonic prerecoupment hearing, which was held
on August 31, 2020. He contested the fact and amount of the overpayment and requested waiver
of recovery of the overpayment. Appellant asserted that he was subject to double jeopardy as
OWCP had vacated the initial preliminary overpayment determination, admitted error, but had
thereafter issued a new preliminary overpayment determination. He also indicated that he had
alerted OWCP that premiums were not being withheld properly from his FECA compensation.
By decision dated November 16, 2020, an OWCP hearing representative finalized the
May 11, 2020 preliminary overpayment determination that appellant had received an overpayment
of compensation in the amount of $5,022.00 for the period May 26, 2019 through February 29,
2020, for which he was without fault, because OWCP had failed to deduct OLI premiums after he
reached age 65 from his compensation payments. He found that issuance of a corrected decision,
reducing the amount of the overpayment, did not constitute double jeopardy. The hearing
representative noted the rates of FEGLI premiums effective January 1, 2016. For option B (per
$1,000 of insurance), the bi-weekly premium for age band 65-69 was .54. Based on his rounded
final salary of $93,000.00 and 5x multiple election, appellant was insured for $465,000.00. The
hearing representative further calculated that twice the bi-weekly rate of .54 was 1.08 and
multiplied by 465 equaled a 28-day premium of $502.20. He denied waiver of recovery of the
overpayment as no financial evidence had been submitted in response to the May 11, 2020
preliminary overpayment determination, as requested. Because OWCP did not have the necessary
financial information to determine an equitable monthly repayment amount, the hearing
representative ordered recovery of the overpayment in full within 30 days. Appellant was directed
to contact OWCP if he wished to enter into a monthly repayment agreement.
LEGAL PRECEDENT -- ISSUE 1
Under the FEGLI Program, most civilian employees of the Federal Government are eligible
to participate in BLI and one or more of the options. 2 The coverage for BLI is effective unless
waived,3 and premiums for basic and optional life coverage are withheld from the employee’s
2

5 U.S.C. § 8702(a).

3

Id. at § 8702(b).

3

pay.4 Upon retirement or upon separation from the employing establishment or being placed on
the FECA periodic compensation rolls, an employee may choose to continue BLI and OLI
coverage in which case the schedule of deductions made will be used to withhold premiums from
his or her annuity or compensation payments.5 BLI coverage shall be continued without cost to
an employee who retired or began receiving compensation on or before December 31, 1989;6
however, the employee is responsible for payment of premiums for OLI coverage which is
accomplished by authorizing withholdings from his or her compensation.7
A 1980 amendment of 5 U.S.C. § 8706(b)(2) provided that an employee receiving
compensation under FECA could elect continuous withholdings from his or her compensation, so
that his or her life insurance coverage could be continued without reduction. 5 C.F.R. § 870.701
(December 5, 1980) provided that an eligible employee had the option of choosing n o life
insurance; Option A -- basic coverage (at no additional cost) subject to continuous withholdings
from compensation payments that would be reduced by two percent a month after age 65 with a
maximum reduction of 75 percent; Option B -- basic coverage (at an additional premium) subject
to continuous withholdings from compensation payments that would be reduced by one percent a
month after age 65 with a maximum reduction of 50 percent; or Option C -- basic coverage subject
to continuous withholdings from compensation payments with no reductions after age 65 (at a
greater premium). 8 When an underwithholding of life insurance premiums occurs, the entire
amount is deemed an overpayment of compensation because OWCP must pay the full premium to
OPM upon discovery of the error.9
FECA provides that the United States shall pay compensation for the disability or death of
an employee resulting from personal injury sustained while in the performance of duty. 10 When
an overpayment has been made to an individual because of an error of fact or law, adjustment shall
be made under regulations prescribed by the Secretary of Labor by decreasing later payments to
which the individual is entitled. 11

4

Id. at § 8707.

5

Id. at § 8706.

6

Id. at § 8707(b)(2).

7

Id. at § 8706(b)(3)(B). See J.H., Docket No. 20-0281 (issued May 18, 2021); B.B., Docket No. 17-1733 (issued
March 26, 2018).
8

See I.J., Docket No. 19-1672 (issued March 10, 2020); C.A., Docket No. 18-1284 (issued April 15, 2019); James J.
Conway, Docket No. 04-2047 (issued May 20, 2005).
9

5 U.S.C. § 8707(d); see also B.B., supra note 7.

10

Id. at § 8102(a).

11

Id. at § 8129(a).

4

ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$5,022.00 for the period May 26, 2019 through February 29, 2020, for which he was without fault,
because of an underwithholding of OLI premiums from his FECA compensation.
OPM notified OWCP that on February 14, 2020 appellant had elected to freeze all of his
Option B additional life insurance at the value as of age 65. OWCP found that appellant had paid
OLI premiums up to May 25, 2019 when he reached the age of 65 on May 12, 2019 and that
deductions for these premiums began on March 1, 2020, but that it did not deduct the proper
amounts of OLI premiums from appellant’s wage-loss compensation benefits for the period
May 26, 2019 through February 29, 2020. It calculated the amount of the resulting overpayment
as $5,022.00. The record contains compensation payment records, as well as an overpayment
worksheet explaining the overpayment calculation and how the overpayment occurred. While in
compensationer status, appellant remained responsible for all insurance benefits, including the
premiums for OLI at whatever option he or she had selected. 12 Moreover, as noted, when an
underwithholding of life insurance premiums occurs, the entire amount is deemed an overpayment
of compensation because OWCP must pay the full premium to OPM upon discovery of the error. 13
The Board thus finds that OWCP properly determined the fact and amount of the
overpayment. As OWCP failed to properly deduct OLI premiums for the period May 26, 2019
through February 29, 2020, appellant received an overpayment of $5,022.00 during this period. 14
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience. 15
Recovery of an overpayment will defeat the purpose of FECA when such recovery would
cause hardship to a currently or formerly entitled beneficiary because the beneficiary from whom
OWCP seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP. 16 Additionally, recovery of an
12

5 C.F.R. § 870.504(b); S.P., Docket No. 17-1888 (issued July 18, 2018).

13

5 U.S.C. § 8102.

14

See J.H., supra note 7; I.J., supra note 8; D.H., Docket No. 19-0384 (issued August 12, 2019); R.W., Docket No.
19-0451 (issued August 7, 2019).
15

5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see A.S., Docket No. 17-0606 (issued
December 21, 2017).
16

20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4a(2) (September 2020).

5

overpayment is considered to be against equity and good conscience when an individual who
received an overpayment would experience severe financial hardship in attempting to repay the
debt or when an individual, in reliance on such payment or on notice that such payments would be
made, gives up a valuable right or changes his or her position for the worse. 17
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. The information is also used to
determine the repayment schedule, if necessary. 18 Failure to submit the requested information
within 30 days of the request shall result in a denial of waiver of recovery, and no further request
for waiver shall be considered until the requested information is furnished. 19
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
The fact that a claimant is without fault in the creation of an overpayment does not preclude
OWCP from recovering the overpayment. 20 As OWCP found appellant without fault in the
creation of the overpayment, waiver must be considered, and repayment is still required unless
adjustment or recovery of the overpayment would defeat the purpose of FECA or be against equity
and good conscience. 21 Appellant, however, has the responsibility to provide the appropriate
financial information and documentation to OWCP.22
In its preliminary overpayment determination dated May 11, 2020, OWCP explained the
importance of providing the completed Form OWCP-20 and financial information, including
copies of income tax returns, bank account statements, bills, pay slips, and any other records to
support income and expenses. It advised appellant that it would deny waiver of recovery if he
failed to furnish the requested financial information within 30 days. Appellant, however, did not
respond. As such, OWCP did not have the necessary financial information to determine if recovery
of the overpayment would defeat the purpose of FECA or if recovery would be against equity and
good conscience.23

17

Id. at § 10.437(a)(b).

18

Id. at § 10.438(a).

19

Id. at § 10.438(b).

20

See George A. Rodriguez, 57 ECAB 224 (2005); Joyce O. Diaz, 51 ECAB 124 (1999).

21

20 C.F.R. § 10.436.

22

Id. at § 10.438; see also N.J., Docket No. 19-1170 (issued January 10, 2020); S.M., Docket No. 17-1802 (issued
August 20, 2018).
23

J.H., supra note 7; D.H., supra note 14.

6

As appellant did not submit the information required under 20 C.F.R. § 10.438, which was
necessary to determine his eligibility for waiver, the Board finds that OWCP properly denied
waiver of recovery of the overpayment. 24
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$5,022.00 for the period May 26, 2019 through February 29, 2020, for which he was without fault,
because of an underwithholding of life insurance premiums. The Board further finds that OWCP
properly denied waiver of recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the November 16, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 24, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

24

Id.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.F., wife of R.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
San Diego, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 10-1664
Issued: March 11, 2011

Case Submitted on the Record

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

JURISDICTION
On June 8, 2010 appellant filed a timely appeal from a May 3, 2010 overpayment
decision of the Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’
Compensation Act,1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction of the
overpayment in this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $8,113.85 following adjustment based on her husband’s felony conviction;
(2) whether the Office properly denied waiver of the recovery of the overpayment; and
(3) whether the Office properly set the rate of recovery from appellant’s continuing
compensation.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 29, 1986 the employee, then a 37-year-old nurse’s aide and escort, sustained a
back injury when moving a gurney in the performance of duty.2 His claim was accepted for a
ruptured disc, low back pain and radiculopathy.3 The employee retired on disability and elected
benefits under the Act as of March 20, 1990 and was placed on the periodic rolls in receipt of
compensation for total disability.
In response to an EN1032 form, the employee advised the Office on October 20, 2008
that he had been incarcerated since June 13, 2008. The record reflects that, following a jury trial,
he was convicted for a violation of California Penal Code 288(A) and was sentenced to a term of
three years in state prison.4
As of the payment period commencing January 18, 2009, the Office adjusted
compensation benefits to reflect payment of 50 percent of gross entitlement payable to appellant
as the employee’s dependent spouse until her husband was released from prison. The
memorandum explaining the overpayment noted that the computer entry was erroneously
processed “basing compensation on 50 percent of the pay rate, plus CPI’s, rather than 50 percent
of the gross current entitlement during the period January 18, 2009 through March 13, 2010.”
Compensation was paid by the Office in the amount of $17,686.42 during this period before the
error was corrected. Compensation due appellant for this period totaled $9,572.57, resulting in
an overpayment of compensation in the amount of $8,113.85.
In a March 23, 2010 letter, the Office advised appellant of its preliminary determination
that an overpayment of benefits was created in the amount of $8,113.85. It advised her that she
was found without fault in the creation of the overpayment and of her right to submit evidence if
she disagreed with the fact or amount of the overpayment. Appellant’s wife was provided a
Form OWCP-20 overpayment questionnaire and notified of her right to request a prerecoupment
hearing, a telephone conference or final decision based on the written record. She was asked to
submit financial information in order that the question of wavier could be considered and
notified that, under the implementing federal regulations, failure to submit the information within
30 days would result in the denial of waiver. Appellant’s wife did not respond.
In a May 3, 2010 decision, the Office finalized the overpayment of compensation. It
noted that there was no response from appellant’s spouse upon notification of the preliminary
determination. The Office found that she was without fault in the creation of the overpayment
because she was not aware of her entitlement to the benefits received; but it denied waiver as
there was no justification offered. It directed recovery of the overpayment by the deduction of
2

The employee previously sustained an electric shock injury to his right hand on September 2, 1984 and a bruise
of his right knee on December 22, 1985. On April 16, 1986 his claim was accepted for a lumbar strain after moving
a gurney.
3

The record is not clear as to the site of any ruptured disc. Diagnostic testing obtained following injury,
including computerized tomography scans, were interpreted as unremarkable or showing no abnormality in
contemporary medical reports through 1989.
4

The charge pertained to a lewd or lascivious act with a child under 14 years of age.

2

$65.00 from future compensation payments, or approximately 10 percent of her net monthly
entitlement.
On appeal, appellant contends that recovery of the overpayment should be reversed.
LEGAL PRECEDENT
The United States shall pay compensation for the disability of an employee resulting
from personal injury sustained while in the performance of duty.5 But no benefits shall be paid
or provided to any individual during any period during which such individual is confined in a
jail, prison or other penal institution or correctional facility pursuant to that individual’s
conviction of an offense that constituted a felony under applicable law.6
The limitation on the payment of compensation benefits to an employee convicted of a
felony unrelated to fraud in the application for or the receipt of benefits under the Act provides
for an exception when such individual has one or more dependents as defined under
5 U.S.C. § 8110(a).7 During the period of incarceration, benefits may be paid to such dependents
based on the percentage of benefits payable to such individual as computed according to the
percentages set forth in 5 U.S.C. § 8133(a)(1) through (5).8
The Office’s procedure manual provides that, in cases involving convictions for felonies
unrelated to claims under the Act but which result in imprisonment, the claims examiner is to
suspend or adjust compensation benefits effective the date of imprisonment.9 When the
employee has eligible dependents, payment is to be calculated by applying the percentages of
5 U.S.C. § 8133(a)(1) through (5) to the claimant’s gross current entitlement, or 50 percent of
gross current entitlement to the spouse if there is no child.10 Under such circumstances, direct
payment may be made to the dependent for the periods of disability during the employee’s
imprisonment.11
ANALYSIS
The Board finds that the case is not in posture for decision. The evidence of record does
not establish that the Office claims examiner properly followed the procedures established under
section 8148(b)(1) in making adjustment to appellant’s compensation benefits as a dependent

5

5 U.S.C. § 8102(a).

6

Id. at § 8148(b)(1). See J.R., Docket No. 08-767 (issued August 12, 2008).

7

Id. at § 8148(b)(3).

8

Id.

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.12(e)(2) (March 1997).

10

Id. at Chapter 2.1400.12(g)(1).

11

Id. at Chapter 2.1400.12(g)(2).

3

spouse. Therefore, the period and amount of overpayment in this case were not properly
determined.
The Office was notified that the employee, appellant’s husband, was incarcerated as of
June 13, 2008 based on his conviction of a felony unrelated to the receipt of compensation
benefits under the Act. Under section 8148(b)(1) the compensation benefits of such employee
are to be suspended during the period of incarceration until such period ends. The benefits he
received became subject to suspension under the Act as of June 13, 2008 upon his incarceration.
The adjustment to compensation payable to appellant as the employee’s dependent spouse under
section 8148(b)(3) was not made effective until January 18, 2009, some seven months following
her husband’s incarceration. The Office claims examiner did not explain why benefits were not
suspended or the adjustment made as of June 13, 2008, as required under the Act.12 There is no
explanation of record why benefits paid the employee for total disability were otherwise allowed
from June 13, 2008 to January 18, 2009 during a period in which he was incarcerated in the
California state prison. This is in contravention of section 8148(b)(1).13 The payment made to
appellant as the employee’s dependent under section 8133 should be based on adjustment as of
June 13, 2008. In this regard, the procedure manual clearly provides that the effective date in
cases involving convictions for felonies unrelated to claims under the Act but which result in
imprisonment is “the date of imprisonment.”14 Moreover, the claims examiner is advised to
inform the employee of the action taken and the reasons for such action; but no such letter is of
record.
For these reasons, the Board finds the Office did not properly determine the period or
amount of overpayment in this case. The case is not in posture for decision as the amount of
overpayment will need to be recalculated.15 The case will be remanded to the Office for further
action and an appropriate overpayment decision complying with the provisions of section
8148(b)(1).16
CONCLUSION
The Board finds that the case is not in posture for decision as to the overpayment created
based on the payment of adjusted benefits following the employee’s incarceration for a felony
unrelated to his benefits under the Act.

12

See Owen P. Crossman, Docket No. 04-766 (issued August 4, 2004) (the claims examiner is to suspend or
adjust compensation benefits effective the date of imprisonment). See also Lucille A. Pettaway, 55 ECAB 228,
232 (2004).
13

See Danny E. Haley, 56 ECAB 393 (2005).

14

Supra note 9.

15

The issues of waiver and recovery are rendered moot.

16

With regard to overpayments of compensation, the Office must provide findings of fact and a statement of
reasons that clearly show how an overpayment was calculated. See O.R., 59 ECAB 432, 437 (2008). Neither the
Office’s preliminary determination nor the final overpayment decision clearly explain how the amount of the gross
current entitlement was determined.

4

ORDER
IT IS HEREBY ORDERED THAT the May 3, 2010 decision of the Office of Workers’
Compensation Programs is set aside. The case is remanded for further action in compliance with
this decision.
Issued: March 11, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’’ Compensation Appeals Board
__________________________________________
F.T., Appellant
and
DEPARTMENT OF DEFENSE, NAVAL AIR
STATION JOINT RESERVE BASE,
FORT WORTH, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 08-1618
Issued: February 9, 2009

Case Submitted on the Record

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

JURISDICTION
On May 19, 2008 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs dated April 24, 2008. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to review the merits of this case.
ISSUES
The issues are: (1) whether the Office properly found an overpayment for the period
February 7 through September 1, 2007 in the amount of $1,801.57; (2) whether the Office
properly denied waiver of the recovery of this overpayment; and (3) whether the Office properly
determined that $100.00 would be deducted from each continuing compensation payment until
the amount was paid in full.

FACTUAL HISTORY
This case has previously been before the Board. The facts of this case are presented in
the previous Board decisions and are hereby incorporated by reference.1 The facts relevant to the
current issue are set forth below.
On August 13, 2007 appellant informed the Office that he had elected to receive social
security benefits. On August 14, 2007 the Office contacted the Social Security Administration
(SSA) to ask for dual benefits calculations. On August 21, 2007 the SSA informed the Office
that effective February 2007, the amount of appellant’s checks were $768.00 with Federal
Employees’ Retirement System (FERS) and would have been $504.00 without FERS.
On August 30, 2007 the Office made a preliminary determination that appellant was
overpaid benefits in the amount of $1,801.57 because he was in receipt of both full social
security benefits payments and full disability compensation during the period February 7 through
September 1, 2007, for which he was not at fault. It calculated that appellant’s net payment for
this period was $14,142.532 but that he was only entitled to a payment of $12,340.96 for this
period. The Office found that the difference between these two figures amounted to an
overpayment in the amount of $1,801.57.
Effective September 2, 2007, the Office began reducing appellant’s compensation by the
FERS offset amount of $243.69 every 28 days.
On September 10, 2007 appellant requested a prerecoupment hearing, noted that the
overpayment occurred through no fault of his own and requested a waiver of the recovery. He
also noted that his income has been cut in half because his wife just had surgery and was not
working. Appellant submitted financial forms wherein he indicated that he had $500.00 cash on
hand and $0.00 in the bank. On the refund questionnaire he indicated monthly income of
$778.00 in social security benefits, $739.00 in the Office payment and $673.00 from the
Department of Veterans Affairs. Appellant listed expenses of $1,314.93 for house payment,
$500.00 for food, $300.00 for clothing, $628.00 for utilities, $502.02 for car payment and
$158.00 for Allstate Insurance. He further broke his expenses down as follows: wife’s
insurance $34.80, car insurance $158.00, house payment $1,314.93, taxes $375.00, telephone
$114.00, electricity $212.00, water $54.00; car payment: $502.02, gas $34.00 (summer),
gasoline $90.00, food $400.00, medicine $200.00 and church tithes $200.00. Appellant
submitted copies of bills in support thereof.3

1

Docket No. 05-1864 (issued May 1, 2006); Docket No. 05-85 (issued July 19, 2005); and Docket No. 04-411
(issued July 14, 2004).
2

The Office noted that the compensation period February 7 through September 1, 2007 included 207 days.

3

These bills evince that appellant had the following monthly bills: $1,314.93 for house payment, $84.85 for
Direct TV, $286.36 for electric and $502.03 for car payment. Appellant showed proof of periodic payments for his
automobile insurance ($989.04); estimated property taxes for 2007 ($3,880.31) and Allstate insurance bill ($716.10
for six-month premium).

2

A telephonic hearing was scheduled for February 12, 2008 but did not take place. By
letter dated February 28, 2008, the hearing representative noted that he would review the written
record and gave appellant additional forms to complete. He instructed appellant to submit copies
of the last few months of bank statements and bills showing expenses. Appellant completed
forms indicating that he had a monthly income of $2,632.70 ($784.00 social security, $465.70
civil service benefits, $670.00 navy retirement, $700.00 spouse’s income) and monthly expenses
of $3,697.93 (including $325.00 for food, $400.00 for clothing, $355.00 for utilities, $508.00 for
car payment and $1,749.93 for mortgage). He listed $500.00 in checking and $500.00 in savings
and no other assets. Appellant contended that he was not at fault in the creation of the
overpayment. He submitted no supporting documentation at this time.
In a decision dated April 24, 2008, the hearing representative affirmed the preliminary
determination that appellant received an overpayment of $1,801.57, for which he was found
without fault in the creation of the overpayment, but affirmed the denial of waiver of the
recovery of the overpayment as he found that appellant had not submitted the necessary financial
information. Furthermore, he assessed a repayment schedule of $100.00 per month from every
compensation check.
LEGAL PRECEDENT -- ISSUE 1
Section 8116 of the Federal Employees’ Compensation Act limits the right to receive
compensation:
“Notwithstanding the other provisions of this section, an individual receiving
benefits for disability or death under this subchapter who is also receiving benefits
under subchapter III of chapter 84 of the title or benefits under title II of the
Social Security Act shall be entitled to all such benefits, except that….”
***
“[I]n the case of benefits received on account of age or death under title II of the
Social Security Act, compensation payable under this subchapter based on the
federal service of an employee shall be reduced by the amount of any such social
security benefits payable that are attributable to [f]ederal service of that employee
covered by chapter 84 of this title.4“
ANALYSIS -- ISSUE 1
The record supports that appellant received full workers’ compensation benefits
concurrent with full SSA benefits from February 7 to September 1, 2007. The portion of the
SSA benefits earned as a federal employee is part of the FERS retirement package and the
receipt of the benefits under the Act and federal retirement benefits concurrently is a prohibited

4

5 U.S.C. § 8116(d)(2); see also 20 C.F.R. § 10.421(d); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Dual Benefits, Chapter 2.1000.11(a)-(b) (February 1995).

3

dual benefit.5 The SSA notified the Office of the applicable SSA rates for appellant and their
effective dates and, based on that information the Office was able to calculate the dual benefits
he received from February 7 to September 1, 2007. On August 21, 2007 the SSA informed the
Office that appellant’s SSA rate was $768.00 with FERS and $504.00 without FERS. The
monthly difference was $264.00. Multiplying by 12 and dividing by 13 to convert the monthly
difference to a 28-day difference (the Office pays compensation every 28 days), the Office
determined that it should have offset appellant’s compensation by $243.69 every 28 days. The
total number of days in the overpayment period was 207. The amount of the overpayment was
$8.70 per day ($243.69 divided by 28) and when this figure is multiplied by 207 days, the
product is $1,801.57 or the amount found by the Office for the overpayment. Accordingly, the
Office properly determined that appellant received an overpayment in the amount of $1,801.57.
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.6 If it finds that the recipient of
an overpayment was not at fault, repayment will still be required unless: (1) adjustment or
recovery of the overpayment would defeat the purpose of the Act; or (2) adjustment or recovery
of the overpayment would be against equity and good conscience.7 This information will also be
used to determine the repayment schedule, if necessary.8 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.9
ANALYSIS -- ISSUE 2
The Office properly found that appellant was not at fault in creating the overpayment.
Although appellant was without fault in creating the overpayment, he nevertheless bears the
responsibility for providing the financial information necessary to support his request for waiver
of the overpayment. In response to the hearing representative’s February 28, 2008 letter,
appellant submitted a completed recovery questionnaire but did not submit the required financial
documentation. In her letter, the hearing representative made it clear that appellant was to attach
supporting financial documents to support the income and expenses listed so that the Office
could determine whether he was entitled to a waiver or determine the proper repayment
schedule. Appellant had previously submitted some copies of bills, however, he never submitted
proof of income or copies of bank statements which would verify his allegation that he had no
money in the bank. Because he failed to submit the complete requested financial documentation,
the Office had no choice but to deny his request for waiver. As the regulations provide, failure to
5

FECA Bulletin No. 97-9 (issued February 3, 1997). See Federal (FECA) Procedure Manual, Part 2 -- Claims,
Dual Benefits, Chapter 2.1000.4e.
6

20 C.F.R. § 10.433(a).

7

Id. at § 10.434.

8

Id. at § 10.438(a).

9

Id. at § 10.438(b).

4

submit the requested information within 30 days of the request shall result in denial of waiver.
The Board will therefore affirm the Office’s hearing representative’s decision denying waiver.10
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.11
ANALYSIS -- ISSUE 3
The Office determined that the overpayment would be recovered by withholding $100.00
from each of appellant’s continuing compensation checks until the payment was repaid in full.
As appellant did not submit the necessary supporting financial documentation, the Board finds
that the Office did not abuse its discretion in setting this repayment schedule.12
CONCLUSION
The Board finds that the Office properly found an overpayment in the amount of
$1,801.57, properly denied waiver of this overpayment and properly determined that $100.00
would be deducted from each continuing compensation payment until the amount was paid in
full.

10

Appellant submitted new documents on appeal. As the Board’s review is limited to the evidence in the case
record at the time the Office made its decision over which the Board has jurisdiction, the Board cannot review this
evidence submitted for the first time on appeal. D.E., 58 ECAB ___ (Docket No. 07-27, issued April 6, 2007).
11

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

12

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 24, 2008 is affirmed.
Issued: February 9, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 20-0715
Issued: March 11, 2021

Case Submitted on the Record

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

JURISDICTION
On February 12, 2020 appellant filed a timely appeal from a September 17, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish greater than 23
percent permanent impairment of his right upper extremity for which he previously received a
schedule award.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that OWCP received additional evidence following the September 17, 2019 decision. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On August 3, 2017 appellant, then a 49-year-old motor vehicle operator, filed a traumatic
injury claim (Form CA-1) alleging that on that date he injured his right shoulder when he attempted
to move an over the road container to load into a truck while in the performance of duty. He
initially stopped work on August 3, 2017 and returned on August 10, 2017.
An August 11, 2017 magnetic resonance imaging (MRI) scan of the right shoulder,
interpreted by Dr. Tuong Huu Le, a Board-certified radiologist, revealed a partial thickness rotator
cuff tear and bony contusion.
OWCP accepted the claim for right shoulder rotator cuff muscle and tendon strain, brachial
plexus injury, and rotator cuff tear or rupture of the right shoulder. (ICD 10) It paid appellant
intermittent wage-loss compensation on the supplemental rolls, effective October 14, 2017, and
on the periodic rolls, effective November 12, 2017. Appellant later received intermittent wageloss compensation again on the supplemental rolls as of November 13, 2018.
OWCP received a January 8, 2018 electromyography/nerve conduction velocity
(EMG/NCV) study, which revealed bilateral carpal tunnel syndrome, and bilateral ulnar motor and
sensory neuropathy.
On March 14, 2019 appellant filed a claim for a schedule award (Form CA-7).
In a November 30, 2018 report, Dr. Rory Allen, an osteopath specializing in family
medicine, noted appellant’s history of injury and medical treatment. He utilized the sixth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides)3 to provide a permanent impairment rating based upon appellant’s diagnoses of
right rotator cuff strain, rotator cuff partial tear, and brachial plexus injury. Dr. Allen found five
percent permanent impairment under the diagnosis-based impairment (DBI) method based upon
appellant’s right rotator cuff strain, with a partial thickness tear and residual loss of normal
function. He explained that, using Table 15-5 page 402 of the A.M.A., Guides, for a right rotator
cuff injury, partial thickness tear, appellant would be rated as a class of diagnosis (CDX) 1, grade
C, with a default rating of three percent. The grade modifier for functional history (GMFH) was
4 due to a QuickDASH score of 93, per Table 15-7 page 406, the grade modifier for physical
examination (GMPE) was 2 due to moderate palpatory findings and decreased range of motion
(ROM) per Table 15-8 page 408, the grade modifier for clinical studies (GMCS) was 2 per Table
15-9 page 410. Dr. Allen applied the net adjustment formula and concluded that appellant had
five percent right upper extremity permanent impairment.
Dr. Allen related three ROM measurements for appellant’s right shoulder. Appellant’s
ROM for the right shoulder was noted as flexion of 43, 45, and 45 degrees, extension 5, 7, and 8,
degrees, abduction 44, 45, and 45 degrees, adduction 14, 15, and 15 degrees, internal rotation 24,
25, and 26 degrees, and external rotation of 30, 32, and 32 degrees. Dr. Allen rounded each of
these findings to 50 degrees loss of flexion, 10 degrees loss of extension, 50 degrees loss of
abduction, 20 degrees loss of adduction, 30 degrees loss of internal rotation, and 30 degrees loss
of external rotation, and found that appellant had nine percent impairment due to loss of flexion,
3

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

2

two percent impairment due to loss of extension, six percent impairment due to loss of abduction,
one percent impairment due to loss of adduction, four percent impairment due to loss of internal
rotation, and two percent impairment due to loss of external rotation. He found that these findings
totaled 24 percent. Dr. Allen then applied the 5 percent adjustment per Table 15-36 page 477 for
GMFH and found 25 percent permanent impairment under the ROM method.
Dr. Allen then provided detailed findings and ratings under Table 15-20 page 434 and 435
for right brachial plexus upper and middle trunk injuries and determined that appellant’s right
brachial plexus injury caused 44 percent permanent upper extremity impairment. He combined
the 25 percent permanent impairment due to appellant’s right shoulder rotator cuff impairment
with right brachial plexus upper trunk injury and concluded that appellant had 52 percent right
upper extremity permanent impairment.
On March 20, 2019 OWCP prepared a statement of accepted facts (SOAF) wherein it noted
the accepted condition as right shoulder rotator cuff muscle and tendon strain.
In an April 13, 2019 report, Dr. Arthur S. Harris, a Board-certified orthopedic surgeon
serving as a district medical adviser (DMA), reviewed Dr. Allen’s November 30, 2018 report. He
explained that Dr. Allen’s findings on examination were much greater than expected for the
diagnosed conditions and objective findings based on the diagnostic studies. Dr. Harris
recommended a second opinion examination because of the discrepancy.
On May 28, 2019 OWCP referred appellant to Dr. Jack Henry, a Board-certified
orthopedic surgeon, for a second opinion permanent impairment evaluation. In a July 18, 2019
report, Dr. Henry noted review of appellant’s history of injury, medical treatment, and the SOAF.
He provided physical examination findings for appellant’s right shoulder, and utilized the sixth
edition of the A.M.A., Guides.4 Dr. Henry noted that he had taken three sets of ROM
measurements and reported the maximum measurements, including 50 degrees flexion, 30 degrees
extension, 55 degrees abduction, 30 degrees adduction, 30 degrees internal rotation, and 40 degrees
external rotation. He referred to Table 15-34 at page 475 and found that flexion of 50 degrees was
equal to nine percent upper extremity impairment, extension of 30 degrees was equal to one percent
upper extremity impairment, abduction of 55 degrees was equal to six percent upper extremity
impairment, adduction of 30 degrees was equal to one percent impairment, internal rotation of 30
degrees was equal to four percent upper extremity impairment, and external rotation of 40 degrees
was equal to two percent upper extremity impairment. Dr. Henry explained that appellant had a
grade 2 ROM modifier using Table 15-35 at page 477 and a GMFH of 2 using Table 15-7 at page
406, and; therefore, no modification of the impairment was required pursuant to Table 15-36 at
page 477 of the A.M.A., Guides. He advised that appellant had 23 percent right upper extremity
impairment using the ROM method.
Dr. Henry referred to Table15-5 at page 402 and explained that using the DBI-based
method, appellant was rated CDX 1 for the accepted right shoulder rotator cuff strain/tear with
residual loss. He applied a GMFH of 2, with pain/symptoms during normal activities, and to
perform all self-care activities independently, based on Table 15-7 at page 406. Dr. Henry applied
a GMPE of 2 for moderate ROM loss, based on Table 15-8 at page 408. He applied a GMCS of
2, based on Table 15-9 at page 410. Dr. Henry utilized the net adjustment formula and determined
4

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

3

+3 to the right of the default grade of C, which resulted in a grade E, or 5 percent right upper
extremity impairment using the DBI method. He advised that, since the ROM impairment rating
was higher than the DBI rating, appellant was assigned 23 percent right upper extremity
impairment.
Dr. Henry noted that he concurred with the findings provided by Dr. Allen, with the
exception of an award for a brachial plexus injury, which was not an accepted condition. He
indicated that appellant had reached maximum medical improvement (MMI).
In accordance with procedure, Dr. Henry’s report was forwarded to the DMA for review.
In an August 9, 2019 report, Dr. Harris, the DMA, reviewed the medical ﬁndings provided
by Dr. Henry. He applied the A.M.A. Guides and used July 18, 2019, the date of Dr. Henry’s
report, as the date of MMI. The DMA advised that, using the DBI method under Table 15-5 of
the A.M.A., Guides, at pages 401 to 405, appellant had five percent permanent impairment for
partial thickness tear of the rotator cuff, the maximum permanent impairment value for the
diagnosis. Regarding ROM method, he concurred with the findings provided by Dr. Henry.
By decision dated September 17, 2019, OWCP granted appellant a schedule award for 23
percent permanent impairment of the right upper extremity. The award ran for 71.76 weeks for
the period July 18, 2019 to December 1, 2020.
LEGAL PRECEDENT
The schedule award provisions of FECA and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body.5 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants.
Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses.6 As of May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (6th ed. 2009).7

5

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

6

20 C.F.R. § 10.404; L.T., Docket No. 18-1031 (issued March 5, 2019); see also Ronald R. Kraynak, 53 ECAB
130 (2001).
7
See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017).

4

In addressing upper extremity impairments, the sixth edition requires identification of the
impairment CDX condition, which is then adjusted by grade modifiers or GMFH, GMPE, and
GMCS.8 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).9
The A.M.A., Guides also provide that the ROM impairment methodology is to be used as
a stand-alone rating for upper extremity impairments when other grids direct its use or when no
other DBI sections are applicable.10 If ROM is used as a stand-alone approach, the total of motion
impairment for all units of function must be calculated. All values for the joint are measured and
added.11 Adjustments for functional history may be made if the evaluator determines that the
resulting impairment does not adequately reflect functional loss and functional reports are
determined to be reliable.12
OWCP issued FECA Bulletin No. 17-06 to explain the use of the DBI methodology versus
the ROM methodology for rating of upper extremity impairments.13 Regarding the application of
ROM or DBI impairment methodologies in rating permanent impairment of the upper extremities,
FECA Bulletin No. 17-06 provides in pertinent part:
“As the [A.M.A.,] Guides caution that, if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the A.M.A.,
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.” (Emphasis in the original.)14
The Bulletin further advises:
“If the rating physician provided an assessment using the ROM method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA

8

A.M.A., Guides 383-492.

9

Id. at 411.

10

Id. at 461.

11

Id. at 473.

12

Id. at 474.

13

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

14

A.M.A., Guides 477.

5

should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.”15
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of
impairment specified.16
ANALYSIS
The Board finds that the case is not in posture for decision.
OWCP’s record reflects that the accepted conditions in this case are right shoulder strain
of the muscles and tendons, right shoulder rotator cuff tear or rupture, and right brachial plexus
injury.
Appellant’s treating physician, Dr. Allen, provided a permanent impairment rating of
appellant’s right upper extremity based upon the diagnoses of right rotator cuff partial thickness
tear and brachial plexus injury. OWCP referred the case record to Dr. Henry for a second opinion
evaluation and thereafter to the DMA, Dr. Harris, for review.
The March 20, 2019 SOAF presented to Dr. Henry, however, only listed the accepted
conditions of right shoulder rotator cuff muscle and tendon strain. It is OWCP’s responsibility to
provide a complete and proper frame of reference for a physician by preparing a SOAF.17 OWCP’s
procedures dictate that, when a DMA, second opinion specialist, or referee physician renders a
medical opinion based on a SOAF which is incomplete or inaccurate, or does not use the SOAF
as the framework in forming his or her opinion, the probative value of the opinion is seriously
diminished or negated altogether.18 OWCP did not provide Dr. Henry, the second opinion
physician with an accurate SOAF as it did identify all of appellant’s accepted right upper extremity
conditions, which also included a right shoulder tear or rupture and a brachial plexus injury. The
Board finds that the report from OWCP’s second opinion physician was not based on an accurate
factual framework.19 The Board is therefore unable to determine which diagnosis and examination
findings related to appellant’s right upper extremity resulted in the highest permanent impairment
rating.

15

Id.; A.G., Docket No. 18-0329(issued July 26, 2018).

16

See Federal (FECA) Procedure Manual, supra note 7 at Chapter 2.808.6(f) (March 2017); B.B., Docket No.
18-0782 (issued January 11, 2019).
17
M.B., Docket No. 19-0525 (issued March 20, 2020); J.N., Docket No. 19-0215 (issued July 15, 2019); Kathryn E.
Demarsh, 56 ECAB 677 (2005).
18

Supra note 7 at Requirements for Medical Reports, Chapter 3.600.3 (October 1990).

19

B.K, Docket No. 19-0976 (issued December 15, 2020); G.C., Docket No. 18-0842 (issued December 20, 2018).

6

Once OWCP undertakes development of the record, it has the responsibility to do so in a
manner that will resolve the relevant issues in the case.20 Accordingly, the Board finds that the
case must be remanded to OWCP. On remand OWCP shall prepare a complete and accurate SOAF
and refer appellant for a new second opinion evaluation to determine his right upper extremity
permanent impairment. Following this and such further development as deemed necessary, it shall
issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the September 17, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 11, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

20

R.W., Docket No. 19-1109 (issued January 2, 2020); D.S., Docket No. 19-0292 (issued June21, 2019); G.C., id.

7


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

)
)
)
)
)
)
)
)

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

Docket No. 09-1610
Issued: May 7, 2010

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 June 8, 2009 appellant, through counsel, filed a timely appeal of the Office of
Workers’ Compensation Programs’ August 5, 2008 and January 6, 2009 merit decisions finding
that he did not sustain a traumatic injury and a May 22, 2009 nonmerit decision denying his
request for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant sustained a back injury on June 13, 2008, as
alleged; and (2) whether the Office properly denied appellant’s request for merit review pursuant
to 5 U.S.C. § 8128(a).
On appeal, counsel argues that the medical evidence established that appellant sustained
an employment-related back injury.

FACTUAL HISTORY
On June 13, 2008 appellant, then a 45-year-old letter carrier, filed a traumatic injury
claim alleging that he sustained a low back injury on that date when his motor vehicle was struck
from behind by a trash truck. On the reverse of the claim form, Robert Muzarol, a supervisor,
noted that appellant was injured while in the performance of duty, based on his statement. In a
June 13, 2008 medical report, Patricia McAlary-Losee, a nurse practitioner, obtained a history
that appellant was driving his own van as he left work when he was rear-ended that day. She
advised that appellant sustained a lumbar strain and was totally disabled for work through
June 16, 2008. Ms. McAlary-Losee opined that the diagnosed condition was caused by the
June 13, 2008 incident.
By letter dated June 19, 2008, the Office advised appellant that the evidence submitted
was insufficient to establish his claim. It requested additional factual and medical evidence,
including a rationalized medical report from an attending physician which described the history
of his claimed injury, provided a firm diagnosis and an opinion on whether the June 13, 2008
incident caused or aggravated his claimed condition.
In reports dated June 1 to July 15, 2008, Ms. McAlary-Losee reiterated that appellant
sustained a lumbar strain. In reports dated June 27 and July 8, 2008, she advised that appellant
also sustained a thoracic strain.
A June 16, 2008 report from Scott Taylor, a physical therapist, listed his findings on
physical examination and diagnosed lumbar strain.
By decision dated August 5, 2008, the Office denied appellant’s claim. It found the
evidence sufficient to establish that the June 13, 2008 incident occurred at the time, place and in
the manner alleged. The medical evidence was found insufficient to establish an injury causally
related to the accepted employment incident.
In a July 1, 2008 report, Mr. Taylor addressed the treatment of appellant’s low back pain.
In reports dated August 20 and September 3 and 17, 2008, Dr. Walter Panis, an attending
Board-certified physiatrist and neurologist, reviewed a history of the June 13, 2008 employment
incident and noted appellant’s complaint of back pain, primarily in the right lumbosacral area.
He listed his findings on physical examination which were consistent with radiculopathy. In the
August 20, 2008 report, Dr. Panis advised that appellant could return to full-time work on that
date with restrictions.
On October 8, 2008 appellant requested reconsideration of the August 5, 2008 decision.
In a September 24, 2008 report, Mr. Taylor addressed the treatment of appellant’s low
back pain.
In reports dated October 8 and 9, 2008, Dr. Panis found that appellant experienced more
difficulty with performing toe raises on the right than the left but, mostly complained about pain.
He was tender to palpation over the right lumbosacral area. Dr. Panis changed his prior
restrictions to reflect that appellant could only work four hours per day with restrictions. In an
2

October 29, 2008 report, he noted appellant’s continuing back symptoms and requested a
magnetic resonance imaging (MRI) scan to determine the nature of his condition. In a
November 5, 2008 report, Dr. Panis reviewed a November 2, 2008 MRI scan performed by
Dr. James R. Hill, a Board-certified radiologist, finding that it was abnormal. He stated: “There
are facet effusions at L1-2. There is a dis[c] herniation at L2-3. It effaced the fat medial to the
left L2 nerve root, possibly irritating it. There are facet effusions at [L]3-4. There is a far right
lateral disc herniation at L4-5. It likely irritates the root. At L5-S1 there is a small central disc
herniation without impingement. S1 and S2 nerve roots are cojoined.” Dr. Panis advised that
appellant’s symptoms remained low back pain, more on the right, but also on the left radiating
down the right leg. He listed his findings on physical examination and stated that he could not
correlate them to the MRI scan findings. Dr. Panis ordered an electromyogram (EMG) study.
Also on November 5, 2008, he advised that appellant could return to work on that date with
restrictions.
In a November 19, 2008 report, Dr. Panis released appellant to return to work with
restrictions on that date. In a December 3, 2008 report, he advised that appellant sustained mild
chronic L5-S1 radiculopathy on the right based on a November 22, 2008 EMG study performed
by Dr. Peter Siao, a Board-certified neurologist. In another December 3, 2008 report and a
report with an illegible date, Dr. Panis advised that appellant could return to work with
restrictions on December 3 and 22, 2008, respectively.
A November 2, 2008 hospital record stated that appellant sustained lumbago,
lumbosacral neuritis not otherwise specified, lumbar disc displacement and thoracic disc
degeneration.
By decision dated January 6, 2009, the Office denied modification of the August 5, 2008
decision. The evidence was sufficient to establish that the June 13, 2008 incident occurred as
alleged.1 The medical evidence, though, was insufficient to establish that appellant sustained an
injury causally related to the accepted employment incident.
In a May 7, 2009 letter, appellant, through his attorney, requested reconsideration
accompanied by medical evidence. In a December 17, 2008 report, Dr. Panis advised that
appellant’s condition was improving. It still remained in his lower back without radiation.
Dr. Panis listed his findings on physical examination and opined that appellant could perform
limited-duty work with restrictions. In a December 31, 2008 report, he stated that appellant
could return to work on January 5, 2009 without restrictions. A December 8, 2008 report from
Tara Kernan, a physical therapist, stated that appellant was treated on December 10
and 17, 2008. Appellant resubmitted Ms. McAlary-Losee’s June 13, 2008 reports, Dr. Panis’
August 20, 2008 report and Dr. Siao’s November 22, 2008 report.

1

By letters dated November 25, 2008, the Office requested that appellant and the employing establishment
provide information regarding the June 13, 2008 employment incident. On November 28, 2008 appellant stated that
he was stopped at a red light in front of the employing establishment when he was hit by a truck. At the time of the
accident, he was beginning his work shift and not leaving work for home. Appellant stated that the employing
establishment had knowledge of and provided consent to use his personal vehicle at work.

3

In a May 22, 2009 decision, the Office denied appellant’s request for reconsideration. It
found that he failed to submit any relevant and pertinent new evidence or argument or establish
that the Office erred in applying or interpreting a point of law. Appellant’s claim was not
entitled to further merit review.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his claim, including the fact that the individual is
an “employee of the United States within the meaning of the Act, that the claim was filed within
the applicable time limitation period of the Act, that an injury was sustained while in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.3 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.4
To establish that a traumatic injury was sustained in the performance of duty the Office
must first determine whether fact of injury is established. First, an employee has the burden of
demonstrating the occurrence of an injury at the time, place and in the manner alleged, by a
preponderance of the reliable, probative and substantial evidence. Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish a causal
relationship between the employment incident and the alleged disability and/or condition for
which compensation is claimed.5 Rationalized medical opinion evidence is medical evidence,
which includes a physician’s rationalized opinion on the issue of whether there is a causal
relationship between the claimant’s diagnosed condition and the implicated employment factors.
The opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.6 Neither the fact that appellant’s
condition became apparent during a period of employment nor his belief that the condition was
caused by his employment, is sufficient to establish a causal relationship.7
ANALYSIS -- ISSUE 1
The Board notes that appellant was involved in a motor vehicle accident on June 13, 2008
while driving his vehicle in the performance of duty as a carrier at the employing establishment.
The Board finds, however, that the medical evidence is insufficient to establish that his
2

5 U.S.C. §§ 8101-8193.

3

Elaine Pendleton, 40 ECAB 1143 (1989).

4

Gary J. Watling, 52 ECAB 278 (2001).

5

Id.

6

Solomon Polen, 51 ECAB 341 (2000).

7

See Dennis M. Mascarenas, 49 ECAB 215 (1997).

4

diagnosed back conditions were caused or aggravated by the June 13, 2008 employment
incident.
The reports from Ms. McAlary-Lossee, a nurse practitioner, and Mr. Taylor, a physical
therapist, have no probative medical value in establishing appellant’s claim. Neither a nurse
practitioner8 nor a physical therapist9 is a “physician” as defined under the Act.
The August 20 to December 3, 2008 reports of Dr. Panis stated that appellant sustained
radiculopathy at L5-S1 on the right, facet effusions at L1-2, a disc herniation at L2-3 which
effaced the fat medial to the left L2 nerve root with possible irritation, facet effusions at L3-4, a
far right lateral disc herniation at L4-5 that likely irritated the root, a small central disc herniation
without impingement at L5-S1 and conjoined S1 and S2 nerve roots. Dr. Panis opined that
appellant could work with restrictions from August 20 to December 22, 2008. He did not
address how these diagnosed conditions were caused or contributed to by the accepted June 13,
2008 employment incident. The Board finds that Dr. Panis’ reports are of diminished probative
value as the physician did not adequately address the issue of causal relation.
Similarly, the November 2, 2008 hospital record which stated that appellant sustained
lumbago, lumbosacral neuritis lumbar disc displacement and thoracic disc degeneration does not
address how he sustained a back condition that was caused or contributed to by the accepted
employment incident. This evidence lacks probative value.
The Board finds that there is insufficient rationalized medical evidence of record to
establish that appellant sustained a back injury causally related to the accepted June 13, 2008
employment incident. Appellant did not meet his burden of proof.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128 of the Act,10
the Office’s regulations provide that a claimant must: (1) show that the Office erroneously
applied or interpreted a specific point of law; (2) advance a relevant legal argument not
previously considered by the Office; or (3) constitute relevant and pertinent new evidence not
previously considered by the Office.11 To be entitled to a merit review of an Office decision
denying or terminating a benefit, a claimant also must file his or her application for review
within one year of the date of that decision.12 When a claimant fails to meet one of the above
standards, the Office will deny the application for reconsideration without reopening the case for
review of the merits.
8

5 U.S.C. § 8102(2). See also Paul Foster, 56 ECAB 208 (2004).

9

David P. Sawchuk, 57 ECAB 316 (2006).

10

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, [t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
11

20 C.F.R. § 10.606(b)(1)-(2).

12

Id. at § 10.607(a).

5

ANALYSIS -- ISSUE 2
In a May 7, 2009 letter, appellant disagreed with the January 6, 2009 decision which
found that the medical evidence of record was insufficient to establish that he sustained a back
condition causally related to the June 13, 2008 employment incident. The relevant issue is
whether his back condition was causally related to the accepted employment incident. The
Board notes that this issue is medical in nature.
Appellant submitted a December 17, 2008 report, from Dr. Panis, who noted that his
condition was improving although it still remained in his lower back without radiation. Dr. Panis
listed findings on physical examination and opined that appellant could perform limited-duty
work with restrictions. On December 31, 2008 he advised that appellant could return to work on
January 5, 2009 without restrictions. These reports are similar to the prior reports regarding
appellant’s back condition and ability to work his which the Office previously reviewed. The
Board has held that evidence that repeats or duplicates evidence already of record has no
evidentiary value and does not constitute a basis for reopening a case.13 Moreover, Dr. Panis
merely reiterated that appellant could work with restrictions despite continuing to experience
back symptoms. He did not further address the relevant issue of causal relation. As Dr. Panis’
reports are essentially repetitious of his earlier reports, the Board finds that they are insufficient
to reopen appellant’s claim for further merit review.
Appellant resubmitted Ms. McAlary-Losee’s June 13, 2008 reports, Dr. Panis’
August 20, 2008 report and Dr. Siao’s November 22, 2008 report. This evidence was previously
of record and reviewed by the Office. Duplicative evidence does not warrant reopening a case
for further merit review.14
Ms. Kernan’s December 8, 2008 report stated that appellant was treated on December 10
and 17, 2008. The Board has held that the submission of evidence which does not address the
particular issue involved in the case does not constitute a basis for reopening the claim.15
Ms. Kernan did not provide a medical opinion addressing the relevant issue of whether appellant
sustained a back injury due to the June 13, 2008 employment incident. The Board finds that this
evidence is insufficient to reopen appellant’s claim for further merit review.
The evidence submitted by appellant did not show that the Office erroneously applied or
interpreted a specific point of law, advance a relevant legal argument not previously considered
by the Office or constitute relevant and pertinent new evidence not previously considered.
Appellant did not meet any of the regulatory requirements for further merit review.16

13

See L.H., 59 ECAB __ (Docket No. 07-1191, issued December 10, 2007); James E. Norris, 52 ECAB
93 (2000).
14

Id.

15

D’Wayne Avila, 57 ECAB 642 (2006).

16

See 20 C.F.R. § 10.608(b); Richard Yadron, 57 ECAB 207 (2005).

6

CONCLUSION
The Board finds that appellant failed to establish that he sustained a back injury on
June 13, 2008, as alleged. The Board further finds that the Office properly denied his request for
a merit review of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 22 and January 6, 2009 and August 5,
2008 decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: May 7, 2010
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

7


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

)
)
)
)
)
)
)
)

Appearances:
Lenin V. Perez, for the appellant1
Office of Solicitor, for the Director

Docket No. 15-1444
Issued: August 11, 2016

Case Submitted on the Record

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

JURISDICTION
On June 23, 2015 appellant, through his representative, filed a timely appeal of a
March 20, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of this case.
ISSUE
The issue is whether appellant has established more than two percent permanent
impairment of his right arm.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 31, 2012 appellant, a 57-year-old letter carrier, filed an occupational disease
claim (Form CA-2), alleging bilateral carpal tunnel syndrome causally related to his employment
factors. On December 4, 2012 OWCP accepted bilateral carpal tunnel syndrome. Appellant
stopped work on September 16, 2012 and returned to limited-duty work on September 17, 2012.
In a December 5, 2012 report, Dr. Benjamin N. Puckett, Board-certified in orthopedic
surgery, stated that appellant was experiencing persistent bilateral hand pain, that the pain was
causing him difficulty with lifting, grasping, and pinching, and that it was aggravated by any
movement. He noted that the results of electromyelogram (EMG) and nerve conduction velocity
(NCV) tests showed moderate-to-severe compression of the left cubital tunnel in addition to
moderate compression of bilateral carpal tunnel syndrome. Dr. Puckett diagnosed moderate
bilateral carpal tunnel syndrome.
The claim was expanded on December 19, 2012 to include lesion of left ulnar
nerve/cubital tunnel.
Dr. Puckett performed a left ulnar nerve transposition procedure at the elbow and left
carpal tunnel release on January 31, 2013. Appellant received wage-loss compensation benefits
from January 26 to March 8, 2013. On April 2, 2013 appellant was placed on the periodic rolls,
effective March 9, 2013.
Appellant filed a Form CA-7 claim for a schedule award on December 15, 2014 based on
a partial loss of use of his left and right upper extremities.3
Dr. Samy F. Bishai, a specialist in orthopedic surgery, stated in an October 15, 2014
report that appellant had 31 percent permanent impairment of the right upper extremity under the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides) sixth edition. He based this rating on the combined rating for 24 percent impairment for
the right shoulder and 9 percent impairment for his right carpal tunnel syndrome, the only
condition OWCP had accepted for the right upper extremity, in this claim. Dr. Bishai advised
that on examination of the right wrist, hand, and forearm appellant had diminished sensation in
the distribution of the median nerve with diminished sensation in the right thumb, index and
middle fingers of the right hand. Appellant had a positive Tinel’s sign and Phalen’s test on the
right side, with weakness in his right hand grip. Dr. Bishai stated that the results of an NCV
study of the upper extremities appellant underwent on October 13, 2014 reflected right-sided
carpal tunnel syndrome affecting the sensory components of the median nerve.
Dr. Bishai calculated the impairment rating for the accepted diagnosis of right carpal
tunnel syndrome by relying on Table 15-23 at page 449.4 He found that under the heading of
3

The Board notes that the issue of permanent impairment from appellant’s accepted left carpal tunnel and lesion
of left ulnar nerve/cubital tunnel conditions was adjudicated by OWCP in a separate claim under case number
xxxxxx365. The record also reflects that appellant has received prior schedule awards for right upper extremity
impairments from shoulder impairments, totaling 15 percent. However, he has not previously received a schedule
award for right carpal tunnel syndrome.
4

A.M.A., Guides 449.

2

“Test Findings” appellant had a grade modifier 2, for motor conduction block, under the heading
of “History,” he rated a grade modifier 3, based on constant symptoms, and under the heading of
“Physical Findings,” he found a grade modifier 3 for atrophy or weakness. Pursuant to the rating
process set forth at page 448,5 Dr. Bishai determined that the average value for these modifiers,
based on adding 2 plus 3 plus 3, divided by 3, equaled 2.66, which he rounded off to 3. This
produced a mid-range impairment of 5 under Table 15-23. Given that appellant’s QuickDASH
test score was 90, Dr. Bishai found that this yielded a mild grade modifier of 3, which produced
nine percent impairment rating for right carpal tunnel syndrome.
The OWCP medical adviser reviewed Dr. Bishai’s report and found that appellant had a
total of two percent permanent impairment of his right upper extremity pursuant to the sixth
edition of the A.M.A., Guides. He stated that appellant had tingling, numbness, and pain in
hands and noted that EMG studies confirmed bilateral carpal tunnel syndrome of moderate
severity, which yielded grade 2 impairment. Based on Table 15-23, page 449 of the A.M.A.,
Guides,6 OWCP’s medical adviser found that his impairment yielded a grade modifier of 1 for
test findings, applied with a default of two percent right upper extremity impairment.
By decision dated March 20, 2015, OWCP awarded appellant a schedule award for two
percent permanent impairment of the right arm. The award ran for 6.24 weeks, covering the
period March 9 to April 21, 2013.
LEGAL PRECEDENT
The schedule award provision of FECA7 and its implementing regulations8 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.9 The claimant has the burden of proving
that the condition for which a schedule award is sought is causally related to his or her
employment.10
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
5

Id. at 448.

6

Id. at 449.

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th ed. 2009).

9

Id.

10

Veronica Williams, 56 ECAB 367, 370 (2005).

3

and Health (ICF).11 Under the sixth edition for upper extremity impairments, the evaluator
identifies the impairment Class of Diagnosis (CDX), which is then adjusted by grade modifiers
based on Functional History (GMFH), Physical Examination (GMPE), and Clinical Studies
(GMCS).12 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS CDX).13
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.14 In
Table 15-23, grade modifiers levels (ranging from zero to four) are described for the categories
of Test Findings, History, and Physical Findings. The grade modifier levels are averaged to
arrive at the appropriate overall grade modifier level and to identify a default rating value. The
default rating value may be modified up or down by one percent based on functional scale, an
assessment of impact on daily living activities.15
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with OWCP’s medical adviser
providing rationale for the percentage of impairment specified.16
ANALYSIS
In this case, OWCP accepted the conditions of bilateral carpal tunnel syndrome and
lesion of left ulnar nerve/cubital tunnel. Appellant filed a claim for a schedule award and OWCP
evaluated the claim for permanent impairment pertaining to the accepted right carpal tunnel
syndrome condition. The record reflects that permanent impairment for the left upper extremity
impairment has been adjudicated under a separate OWCP file number xxxxxx365.
The Board finds that the case is not in posture for decision.
As noted above, impairment due to carpal tunnel syndrome is evaluated pursuant to Table
15-23, which sets forth grade modifier levels for Test Findings, History, and Physical Findings.
These grade modifier levels are averaged to arrive at the appropriate overall grade modifier level
and to identify a default rating value.17 Dr. Bishai, in his October 15, 2014 report, evaluated
appellant’s impairment under the categories of Test Findings, History, and Physical Findings, as
11

A.M.A., Guides, supra note 4 at 3, section 1.3, the ICF: A Contemporary Model of Disablement.

12

Id. at 385-419

13

Id. at 411.

14

Id. at 449.

15

Id. at 448-50.

16

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).
17

Supra note 15.

4

required by Table 15-23. He concluded that appellant had nine percent permanent impairment of
the right upper extremity due to his right carpal tunnel condition. Pursuant to its procedures,
OWCP then referred Dr. Bishai’s report to its medical adviser for review.
In its March 20, 2015 decision, OWCP based its schedule award on the December 29,
2014 report of its medical adviser, who rated two percent permanent impairment for right carpal
tunnel syndrome. However, OWCP’s medical adviser only calculated a grade modifier for test
findings based on an EMG study showing moderate carpal tunnel and failed to evaluate the
categories of history and physical findings. Thus, his impairment rating was not rendered in
conformance with the procedures outlined above.
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility to see that justice is done. Once OWCP undertakes to develop the medical
evidence it has the responsibility to do so in a proper manner.18
The Board sets aside OWCP’s March 20, 2015 decision and remands the case for
clarification from the medical adviser as to whether appellant had additional impairment of his
right upper extremity related to his right carpal tunnel syndrome, as indicated by Dr. Bishai’s
December 29, 2014 report, pursuant to the appropriate guidelines. On remand, OWCP should
instruct its medical adviser to clearly indicate how he reached his ratings. After such further
development of the record as it deems necessary, OWCP shall issue a de novo decision.
On appeal appellant’s representative contends that a conflict exists in the medical opinion
evidence regarding the degree of permanent impairment to appellant’s right upper extremity
requiring referral to an impartial medical examiner. The Board however concludes that the case
is not in posture for decision as the medical evidence of record has not been fully developed.
CONCLUSION
The Board finds that the case is not in posture for decision.

18

See L.S., Docket No. 14-1460 (issued January 2, 2015).

5

ORDER
IT IS HEREBY ORDERED THAT the March 20, 2015 decision of the Office of
Workers’ Compensation Programs be set aside and the case is remanded to OWCP for further
action consistent with this decision of the Board.
Issued: August 11, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6