United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, BWI THURGOOD
MARSHALL AIRPORT, Linthicum, MD,
Employer
__________________________________________

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

Docket No. 20-0639
Issued: November 10, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 29, 2020 appellant filed a timely appeal from an October 11, 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.
ISSUE
The issue is whether appellant has met his burden of proof to establish a medical condition
causally related to the accepted July 25, 2018 employment incident.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 22, 2018 appellant, then a 62-year-old supervisory transportation security
officer, filed a traumatic injury claim (Form CA-1) alleging that on July 25, 2018 he injured his
neck, shoulders, knees, and back when he fell over a cart while in the performance of duty. On
the reverse side of the claim form, appellant’s supervisor, W.B., acknowledged that the incident
occurred in the performance of duty and that there was no willful misconduct involved. Appellant
stopped work on July 25, 2018 and returned on August 15, 2018.
Appellant was treated by Dr. Eddye J. Bullock, a Board-certified internist, on July 25
and 31, 2018, for low back, right shoulder, and neck pain after he fell over a cart at work.
Dr. Bullock diagnosed myalgia and opined that appellant “most likely” sustained a contusion from
a fall. On October 30, 2018 appellant presented with worsening neck and shoulder pain and
cracking in the right shoulder. Dr. Bullock diagnosed osteoarthritis of the right shoulder, neck
pain, and cervical spondylosis. On November 21, 2018 he evaluated appellant for recurrent low
back pain. Dr. Bullock diagnosed chronic low back pain and opined that the episode “maybe”
[sic] related to the fall over the summer; however, he noted that appellant had a history of back
pain that predated the fall.
Appellant attended physical therapy treatment from July 31 to December 6, 2018.
Dr. Alireza P. Farsaii, a Board-certified orthopedist, evaluated appellant on November 16,
2018, for bilateral shoulder pain, which began after a fall that occurred four months earlier. An
x-ray of the left shoulder of even date revealed no acute fractures, no dislocation or bony lesions,
and mild degenerative arthritis at the glenohumeral joint and acromioclavicular (AC) joints.
Dr. Farsaii’s assessment was “right shoulder rule out rotator cuff tear.”
A November 21, 2018 magnetic resonance imaging (MRI) scan of the right shoulder
revealed: full-thickness, full width tear of the supraspinatus tendon, retracted; high-grade partial
tear of the distal subscapularis with tendinopathy; chronic tears along the superior labrum,
posterior labrum and anterior labrum; moderate degenerative joint disease of the AC joint, and
minimal joint arthritis with chondromalacia. An MRI scan of the left shoulder of even date
revealed an articular surface tear along the anterior fibers of the distal supraspinatus, partial
insertional tear of the distal subscapularis with tendinopathy, degenerative changes, partial tears
along the anterior labrum, fragmentation, and advanced degenerative changes along the AC joint.
On November 30, 2018 Dr. Farsaii reviewed the MRI scan of the right shoulder and
diagnosed traumatic, full-thickness right rotator cuff tear and biceps tendinitis and recommended
right shoulder arthroscopic rotator cuff repair and open subpectoral biceps tenodesis.
In a December 13, 2018 development letter, OWCP informed appellant that, when his
claim was first received, it appeared to be a minor injury that resulted in minimal or no lost time
for work, and therefore, payment of a limited amount of medical expenses was administratively
approved without formal consideration of the merits of his claim. It had now reopened his claim
for consideration of the merits. OWCP advised appellant of the deficiencies of his claim, requested
additional factual and medical evidence, and provided a questionnaire for his completion. It
afforded him 30 days to respond.

2

In a July 24, 2018 statement, appellant indicated that while he was opening up a passenger
lane he fell over a cart and injured his right side, neck, shoulders, buttocks, and knees. He
experienced a nose bleed later that day and stopped work.
An employing establishment incident report dated July 31, 2018, prepared by A.B., a
fellow transportation security officer, noted that on July 24, 2018 appellant was on duty setting up
lane four for checkpoint screening when he tripped and fell over a smart cart. He remained on the
floor until being assisted up by a coworker and a passenger.
In an August 10, 2018 authorization for examination and/or treatment (Form CA-16), the
employing establishing authorized appellant to seek medical care. In Part B of the Form CA-16,
attending physician’s report, of even date, Dr. Bullock reported that appellant fell over a cart at
work and landed on his right side. He noted that appellant reported preexisting neck and back
pain. Dr. Bullock diagnosed myalgia, and noted the cause of injury was a fall against an object.
He checked a box marked “Yes” indicating that the diagnosed conditions were caused or
aggravated by the described employment activity. Dr. Bullock further indicated that appellant was
totally disabled from work from July 25 to August 14, 2019.
In return to work slips dated July 25 and 30, 2018, Dr. Bullock noted that appellant was
disabled from work from July 25 to August 5, 2018. In an August 10, 2018 attending physician’s
report (Form CA-20), he noted that appellant was injured at work on July 25, 2018 when he fell
over a cart and onto his side. Dr. Bullock diagnosed myalgia and checked a box marked “Yes”
indicating that appellant’s condition had been caused or aggravated by an employment activity.
By decision dated January 30, 2019, OWCP denied appellant’s traumatic injury claim,
finding that the medical evidence submitted was insufficient to establish causal relationship
between his diagnosed conditions and the accepted July 25, 2018 employment incident.
On February 25, 2019 appellant requested an oral hearing. He later requested that OWCP
proceed with a review of the written record in lieu of an oral hearing.
OWCP received additional evidence. In a January 9, 2019 response to OWCP’s
development questionnaire, appellant indicated that, on July 24, 2018, he was working at C pier
checkpoint opening the stanchions that blocked off an entrance way to two lanes. After opening
the lane he tripped over a baggage cart and flipped upward about two or three feet and then fell on
his backside. Appellant reported the accident to his supervisor A.B. He indicated that he had not
sustained any injuries on or off duty since the accident. Appellant sought treatment from
Dr. Bullock on July 25, 2018 for pain in his knees, neck, shoulder, back, and right side. He related
that he experienced chronic back pain from a past injury and had bilateral knee surgery in 2016,
but remained pain free until this accident.
In reports dated January 14 and February 5, 2019, Dr. Bullock summarized appellant’s
July 25 and 31, and November 21, 2018 office visits. He diagnosed chronic lumbar back pain and
lumbar osteoarthritis/spondylosis, which flared up after appellant’s fall at work on July 24, 2018,
and opined that the fall against the cart exacerbated appellant’s chronic back and neck conditions.
In a February 26, 2019 operative report, Dr. Farsaii noted performing a right shoulder
arthroscopic rotator cuff repair and open subpectoral biceps tenodesis. He diagnosed right
shoulder massive rotator cuff tear, biceps tendinitis, and biceps tendon tear.
3

By decision dated October 11, 2019, OWCP’s hearing representative affirmed the
January 30, 2019 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,3 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. First,
the employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time and place, and in the manner alleged. Second, the employee must
submit sufficient evidence to establish that the employment incident caused a personal injury.6
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence.7 The opinion of the physician must be based on a complete factual and medical
background of the employee, 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
specific employment incident identified by the employee.8
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted July 25, 2018 employment incident.

2

Supra note 1.

3

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
4
L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
5
P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

T.J., Docket No. 19-0461 (issued August 11, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
7

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
8
T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020); Victor J.
Woodhams, 41 ECAB 345, 352 (1989).

4

In support of his claim appellant submitted medical reports from Dr. Bullock dated July 25
and 30, 2018, who diagnosed myalgia and advised that appellant “most likely” sustained a
contusion from a fall. Similarly, on October 30 and November 21, 2018, Dr. Bullock diagnosed
chronic low back pain and opined that the episode may be related to the fall over the summer. The
Board has held that such medical opinions that suggest that a condition was most “likely” caused
by work activities are speculative or equivocal in character and have limited probative value.9 As
such, these medical notes by Dr. Bullock are insufficient to establish appellant’s claim.
In return to work slips dated July 25 and 30, 2018, Dr. Bullock noted that appellant was
disabled from work from July 25 to August 5, 2018. As these notes do not address causation, they
are of no probative value and insufficient to meet appellant’s burden of proof.10
In a Form CA-20 dated August 10, 2018, Dr. Bullock diagnosed myalgia and checked a
box marked “Yes” indicating that the condition was caused or aggravated by the employment
incident. The Board has held, however, that a report that addresses causal relationship with a
checkmark, without medical rationale explaining how the employment incident caused or
aggravated the diagnosed condition, is of diminished probative value and insufficient to establish
causal relationship.11
Other reports from Dr. Bullock dated January 14 and February 5, 2019, diagnosed chronic
lumbar back pain and lumbar osteoarthritis/spondylosis. He opined that appellant’s fall against a
cart exacerbated his chronic back and neck conditions. Although his statement is supportive of a
causal relationship, he did not offer medical rationale explaining the basis of his conclusory
opinion regarding the causal relationship between appellant’s back and neck conditions and the
factors of his federal employment.12 The Board has held that a mere conclusion without the
necessary rationale as to whether a given medical condition was related to an accepted employment
incident is insufficient to meet a claimant’s burden of proof.13 As such, these notes are of limited
probative value.
In reports dated November 16 and 30, 2018, Dr. Farsaii evaluated appellant for a fourmonth history of bilateral shoulder pain, which began after a fall at work. He diagnosed traumatic,
full thickness right rotator cuff tear, and biceps tendinitis and performed right shoulder
arthroscopic surgery on February 26, 2019. However, as Dr. Farsaii did not offer an opinion on
causal relationship, his opinion is of no probative value.14 Therefore, his medical reports are
insufficient to meet appellant’s burden of proof.
Appellant submitted physical therapy reports dated July 31 to December 6, 2018.
However, certain healthcare providers such as physician assistants, nurses, nurse practitioners,
9

J.W., Docket No. 18-0678 (issued March 3, 2020).

10

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

11

See K.R., Docket No. 19-0375 (issued July 3, 2019); Deborah L. Beatty, 54 ECAB 340 (2003).

12

P.L., Docket No. 19-1750 (issued March 26, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

13

A.T., Docket No. 19-0410 (issued August 13, 2019); E.L., Docket No. 17-1632 (issued January 3, 2018).

14

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

5

physical therapists, and social workers are not considered “physician[s]” as defined under FECA.
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to FECA benefits.15
Appellant also submitted MRI scans of the left and right shoulder dated November 21,
2018, and an x-ray of the left shoulder dated November 22, 2017. The Board has explained that
diagnostic studies, standing alone, lack probative value as they do not address whether the
employment incident caused any of the diagnosed conditions.16
As the case record does not contain rationalized medical evidence sufficient to establish
causal relationship between the accepted July 25, 2018 employment incident and his diagnosed
conditions, the Board finds that appellant has not met his burden of proof.
On appeal appellant asserts that his supervisors and physicians concluded that the fall at
work caused his rotator cuff tear and exacerbated his arthritis, and that OWCP ignored this
evidence. He asserted that, if this evidence was insufficient, the claims examiner should have
obtained additional medical evidence or referred him for a second opinion evaluation. Appellant
referenced the case of Elizabeth Maypother.17 In that case, he asserted that the leukemia and
subsequent infection, which caused her husband’s death was causally related to a slip and fall
injury that occurred at work on March 7, 1950. Appellant submitted rationalized medical evidence
sufficient to merit further development and OWCP referred him to two second opinion evaluations.
However, as explained above, he has not submitted rationalized medical evidence sufficient to
establish his claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

15

Section 8102(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay
individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion
under FECA); see also J.R., Docket No. 20-0496 (issued August 13, 2020) (physical therapists are not considered
physicians under FECA).; see also S.L., Docket No. 19-0603 (issued January 28, 2020) (a nurse is not considered a
physician as defined under FECA).
16

R.C., Docket No. 19-0376 (issued July 15, 2019).

17

5 ECAB 604 (1953).

6

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted July 25, 2018 employment incident.18
ORDER
IT IS HEREBY ORDERED THAT the October 11, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 10, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

18

The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization
may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed.
The form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. The period for which treatment is authorized by
a Form CA-16 is limited to 60 days from the date of issuance, unless terminated earlier by OWCP. 20 C.F.R.
§ 10.300(c); P.R., Docket No. 18-0737 (issued November 2, 2018); N.M., Docket No. 17-1655 (issued January 24,
2018); Tracy P. Spillane, 54 ECAB 608 (2003).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pittsburgh, PA, Employer
__________________________________________

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

Docket No. 08-1949
Issued: February 18, 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 July 7, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ May 9 and June 3, 2008 merit decisions, denying her claims for
periods of employment-related total disability. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(d)(2), the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained
employment-related disability for periods between October 22, 2007 and May 9, 2008.
FACTUAL HISTORY
The Office accepted that by mid 2003 appellant, then a 42-year-old window clerk,
sustained several conditions due to the repetitive duties of her job.1 It accepted that she sustained
sprains of her neck, right rotator cuff and right upper arm, disorder of the bursae and tendons of
her right shoulder, impingement syndrome of her right shoulder and cervalgia. Appellant
1

The window clerk position required appellant to lift up to 70 pounds and reach above her shoulders.

returned to limited-duty work for the employing establishment, which did not require lifting
more than 15 pounds or reaching above her shoulders.
On January 19, 2004 appellant underwent subacromial decompression and distal clavicle
excision surgery of her right shoulder. The procedure was authorized by the Office. In a July 5,
2005 decision, the Office granted appellant a schedule award for a 22 percent permanent
impairment of her right arm. The award ran for 68.64 weeks from January 18, 2005 to
May 13, 2006. In several claims for compensation (Forms CA-7), appellant alleged that she
sustained total disability for periods between October 22, 2007 and April 25, 2008 due to her
employment injures.
In a December 18, 2007 report, Dr. Eric Heimberger, an attending Board-certified
orthopedic surgeon, stated that appellant presented with some chronic right shoulder and neck
pain and a mild radiculopathy in her right arm. He indicated that appellant had been diagnosed
with sarcoidosis and had some related pulmonary problems. Appellant reported that she had to
delay pain management therapy until she was cleared for her sarcoidosis condition.
Dr. Heimberger stated that her examination was relatively unchanged with good range of motion
and only mild tenderness in her neck and right shoulder. He noted, “I do feel, once again, that
she is unable to do her normal job duties in regards to her neck, right shoulder and arm pain at
this time. This will also include any type of repetitive lifting, pushing, pulling, grasping or
grabbing.”2
On March 18, 2008 the Office requested that appellant submit additional factual and
medical evidence in support of her claim. In an April 3, 2008 report, Dr. Heimberger stated that
appellant had been under his care for chronic neck and right shoulder pain that she sustained
following a May 2002 employment-related injury. He noted that when appellant was referred for
pain management she was diagnosed with an unrelated condition and asserted that she was
unable to do her normal activities as she did have some worsening pain about her neck and right
shoulder. Dr. Heimberger stated, “Once again, she is unable to undergo treatment for this at this
time due to her other, unrelated condition. I do not foresee any significant changes in the near
future. Certainly, once she is able to resume her treatment, in regards to her neck and right
shoulder, including pain management therapy, her condition might improve where upon she
could return back to her previous level of restricted duty.”
In a May 9, 2008 decision, the Office denied appellant’s claim that she sustained
employment-related total disability for periods between October 22, 2007 and April 25, 2008 on
the grounds that she did not submit sufficient medical evidence to establish such disability. On
May 12, 2008 appellant filed a Form CA-7 alleging that she sustained total disability for the
period April 26 to May 9, 2008 due to her employment injuries. In a June 3, 2008 decision, the
Office denied appellant’s claim that she sustained employment-related total disability for the
period April 26 to May 9, 2008 on the grounds that she did not submit sufficient medical
evidence to establish such disability.

2

In a December 18, 2007 work restriction form, Dr. Heimberger checked a box indicating that appellant could
not work until further notice.

2

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of her claim including the fact that the individual is
an “employee of the United States” within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that an injury was sustained 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.4 The medical evidence
required to establish a causal relationship between a claimed period of disability and an
employment injury is rationalized medical opinion evidence. 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
compensable 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.5
ANALYSIS
The Office accepted that appellant sustained sprains of her neck, right rotator cuff and
right upper arm, disorder of the bursae and tendons of her right shoulder, impingement syndrome
of her right shoulder and cervalgia due to her repetitive job duties. On January 19, 2004
appellant underwent subacromial decompression and distal clavicle excision surgery of her right
shoulder. She returned to limited-duty work for the employing establishment which did not
require lifting more than 15 pounds or reaching above her shoulders.
Appellant alleged that she sustained total disability for periods between October 22, 2007
and May 9, 2008 due to her employment injuries, but the Board finds that she did not submit
sufficient medical evidence to support such employment-related disability.
In a December 18, 2007 report, Dr. Heimberger, an attending Board-certified orthopedic
surgeon, stated that appellant presented with some chronic right shoulder and neck pain and a
mild radiculopathy in her right arm. He indicated that she had been diagnosed with sarcoidosis
and had delayed her pain management therapy until she was cleared for her sarcoidosis
condition. Dr. Heimberger stated that appellant’s examination was relatively unchanged with
good range of motion and only mild tenderness in her right shoulder. He indicated that once
appellant’s sarcoidosis was “squared away” he would recommend proceeding with pain
management therapy. Dr. Heimberger noted that appellant could not perform her normal job
duties “in regards to her neck, right shoulder and arm pain” and could not engage in any
repetitive lifting, pushing, pulling, grasping or grabbing.

3

5 U.S.C. §§ 8101-8193.

4

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

See Donna Faye Cardwell, 41 ECAB 730, 741-42 (1990).

3

This report, however, is of limited probative value on the relevant issue of the present
case in that it does not contain an opinion on causal relationship.6 Dr. Heimberger did not
provide a clear opinion that appellant’s work limitations on or after October 22, 2007 were
related to her accepted employment injuries. He did not describe appellant’s employment
injuries in any detail or explain how they could have caused total disability. In addition,
Dr. Heimberger did not provide a clear opinion that appellant could no longer perform her very
limited job duties on or after October 22, 2007. He did not describe what objective employmentrelated findings on examination or diagnostic testing would lead to such disability. In fact,
Dr. Heimberger indicated that appellant’s right shoulder condition had not changed and only
noted that she reported mild tenderness in her neck and right shoulder. In a December 18, 2007
work restriction form, he checked a box indicating that appellant could not work until further
notice. However, Dr. Heimberger did not indicate that this total disability was due to residuals
of any employment injury.7
On April 3, 2008 Dr. Heimberger stated that appellant had been under his care for
chronic neck and right shoulder pain that she sustained following a May 2002 employmentrelated injury. He noted that she reported she was unable to do her normal activities as she had
some worsening pain about her neck and right shoulder. Dr. Heimberger again noted that
appellant had suspended her pain management therapy due to a condition unrelated to her neck
and right shoulder and stated, “Certainly, once she is able to resume her treatment, in regards to
her neck and right shoulder, including pain management therapy, her condition might improve
where upon she could return back to her previous level of restricted duty.” Dr. Heimberger again
did not provide a clear opinion that appellant’s work limitations on or after October 22, 2007
were related to her accepted employment injuries. He did not explain why appellant could no
longer perform her very limited job duties on or after October 22, 2007.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained employment-related disability for periods between October 22, 2007 and May 9, 2008.

6

See Charles H. Tomaszewski, 39 ECAB 461, 467-68 (1988) (finding that medical evidence which does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
7

Moreover, Dr. Heimberger did not explain how this disability assessment comported with the suggestion in his
December 18, 2007 narrative report that appellant could perform some type of limited-duty work.

4

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
June 3 and May 9, 2008 decisions are affirmed.
Issued: February 18, 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

5


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

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

Docket No. 17-1949
Issued: October 16, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 18, 2017 appellant filed a timely appeal from an April 6, 2017 merit decision
and an August 25, 2017 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.2
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish more than
13 percent permanent impairment of her left upper extremity, for which she previously received
schedule award compensation; (2) whether appellant has met her burden of proof to establish
permanent impairment of her lower extremities due to her accepted lumbar conditions; and

1

5 U.S.C. § 8101 et seq.

2
The record on appeal includes evidence received after OWCP issued its August 25, 2017 decision. 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.
20 C.F.R. § 501.2(c)(1). Therefore, evidence not before OWCP at the time of the August 25, 2017 decision will not
be considered by the Board for the first time on appeal. Id.

(3) whether OWCP properly denied appellant’s request for reconsideration of the merits of her
schedule award claims pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On December 1, 2009 appellant, then a 53-year-old sales and service associate, filed a
traumatic injury claim (Form CA-1) alleging that, while at work on November 30, 2009, she
sustained a lower back and left shoulder injury while placing heavy boxes onto a cart. OWCP
accepted the claim, assigned OWCP File No. xxxxxx704, for lumbar sprain and left shoulder and
rotator cuff sprain. Appellant underwent authorized left shoulder rotator cuff repair,
acromioplasty, and distal clavicle resection on April 14, 2010.3
She retired effective
April 21, 2011.4
On June 26, 2012, under the current claim, appellant filed a claim for a schedule award
(Form CA-7) due to her accepted left shoulder and lumbar sprain conditions.
In a September 26, 2012 report, Dr. Allan Brecher, a Board-certified orthopedic surgeon
and second opinion examiner, reviewed the statement of accepted facts (SOAF) and the medical
evidence of record.5 In pertinent part, he opined that maximum medical improvement (MMI) for
all conditions was reached on the date of his examination. Dr. Brecher opined that there was no
permanent impairment under the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides)6 for the left CTS or rotator cuff as the
conditions were resolved. He also opined that there was no permanent impairment of the back or
lower extremities as appellant’s back pain was subjective.
In an October 1, 2012 report, Dr. Samuel J. Chmell, a Board-certified orthopedic surgeon,
advised that appellant had reached MMI on May 24, 2012 for the left shoulder torn rotator
cuff/strain. In an attached September 13, 2012 upper extremity worksheet, he opined that she had
a total 30 percent left upper extremity permanent impairment after combining range of motion
(ROM) and diagnosis-based impairment (DBI) calculations.

3

OWCP previously accepted that appellant sustained a sprain of lumbosacral (joint) (ligament), displacement of
lumbar intervertebral disc at L4-5 without myelopathy; and thoracic or lumbosacral left-sided neuritis or radiculitis
due to a September 3, 1991 employment injury, assigned OWCP File No. xxxxxx544. It also previously accepted that
she sustained bilateral carpal tunnel syndrome (CTS) due to a September 2, 1991 employment injury, assigned OWCP
File No. xxxxxx845. In October 1995, OWCP granted appellant a schedule award for 10 percent permanent
impairment of the right upper extremity. On May 26, 2012 appellant filed a claim for a schedule award (Form CA-7)
due to her accepted bilateral CTS under OWCP File No. xxxxxx845.
4

OWCP File Nos. xxxxxx704, xxxxxx544, and xxxxx845 have been administratively combined, with the former
serving as the master file.
On August 14, 2012 OWCP determined that a second opinion evaluation was necessary to determine appellant’s
work status attributable to her accepted lumbar strain and left shoulder and rotator cuff conditions. The second opinion
examiner was asked to provide an assessment of appellant’s permanent partial impairment of her lumbar strain and
left shoulder and rotator cuff conditions. The SOAFs noted that bilateral CTS was an accepted condition under OWCP
File No. xxxxxx845 and OWCP provided a copy of the case file.
5

6

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

2

On October 15, 2012 OWCP declared a conflict in medical opinion between Dr. Brecher
and Dr. Chmell regarding the assessment of appellant’s permanent impairment of the left upper
extremity. Appellant was referred to Dr. S.I. Yen, a Board-certified orthopedic surgeon, for an
impartial medical examination to resolve the conflict in medical opinion. However, in his
December 31, 2012 report, Dr. Yen failed to resolve the conflict as he indicated that he did not
perform permanent impairment ratings.
Dr. David H. Garelick, a Board-certified orthopedic surgeon, serving as an OWCP district
medical adviser (DMA), reviewed Dr. Chmell’s June 30 and October 1, 2012 impairment ratings
respectively on March 4 and October 21, 2013. He indicated that both Dr. Chmell’s June 30 and
October 1, 2012 impairment ratings were not acceptable as the A.M.A., Guides prohibited
combining ROM and DBI impairments. In his October 21, 2013 report, Dr. Garelick noted
Dr. Chmell’s examination findings for the left shoulder, which had full ROM with no signs of
impingement. He opined that MMI was reached one year following the rotator cuff repair and
that, under Table 15-5, page 403 of the A.M.A., Guides, appellant had 10 percent left upper
extremity permanent impairment for distal clavicle resection. Dr. Garelick noted that, since the
shoulder was essentially asymptomatic, no additional award was given for the rotator cuff repair.
He also found no objective evidence for any lower extremity impairment.7
By decision dated January 2, 2014, OWCP granted appellant a schedule award for 10
percent permanent impairment of her left upper extremity. The award ran 31.2 weeks for the
period July 28, 2013 to March 3, 2014 and was based on Dr. Garelick’s impairment rating for a
distal clavicle resection.
On January 9, 2014 appellant requested an oral hearing before an OWCP hearing
representative. A video hearing was held on May 14, 2014.
The record reflects that, under OWCP File No. xxxxxx845, Dr. James P. Elmes, a Boardcertified orthopedic surgeon serving as a second opinion physician, performed an upper extremity
impairment evaluation for appellant’s accepted bilateral CTS on March 24, 2014. He opined that
appellant reached MMI for the left wrist in May 2011, for the right wrist in May 2012, and for the
left shoulder in January 2011. Dr. Elmes opined that she had 21 percent total impairment of the
left upper extremity and 1 percent impairment of the right upper extremity. He noted his
examination findings and provided his calculations. In a March 29, 2014 addendum, Dr. Elmes
indicated that Table 15-21, page 438 of the A.M.A., Guides was used because of median nerve
entrapment at the left wrist and that appellant had 12 percent permanent impairment for the left
CTS and 1 percent permanent impairment for the right CTS.
On May 5, 2014 Dr. Garelick opined that Dr. Elmes’ impairment recommendations should
not be used as Dr. Elmes had used Table 15-21, Table 15-8, and Table 16-23 to compute his 12
percent permanent impairment for the left upper extremity and the A.M.A., Guides used Table 15Based on the examination findings provided by Dr. Chmell, the DMA noted that the predominance of appellant’s
complaints with regard to the back were on the left side. Appellant was able to toe and heel walk and had no pain
with straight leg raise. The lower extremity strength was normal except for some slight loss of strength in the
quadriceps and hamstring musculature. The DMA indicated the lumbar MRI scan demonstrated questionable
narrowing of the L4-5 disc space without mention of nerve root impingement with a disc protrusion/herniation more
pronounced on the right.
7

3

23 for peripheral nerve entrapment syndromes. Using Dr. Elmes’ October 24, 2014 examination
findings, the Dr. Garelick opined that appellant had eight percent left upper extremity permanent
impairment and eight percent right upper extremity permanent impairment due to the bilateral
CTS. He set forth his calculations. As appellant already received 10 percent permanent
impairment for the right upper extremity due to CTS, Dr. Garelick opined that no additional award
was warranted. Using the Combined Values Chart, Dr. Garelick opined that appellant had 17
percent total left upper extremity permanent impairment (8 percent for CTS and 10 percent for left
shoulder previously awarded). The date of MMI was March 24, 2014, the date of Dr. Elmes’
examination.
By decision dated July 16, 2014, an OWCP hearing representative set aside OWCP’s
January 2, 2014 left upper extremity schedule award decision. He found that a conflict of medical
opinion still remained between Drs. Brecher and Chmell with regard to the assessment of
appellant’s left upper extremity permanent impairment and a new impartial medical specialist was
required as Dr. Yen had indicated that he did not perform impairment evaluations. The hearing
representative further found that Dr. Brecher’s September 25, 2012 opinion that appellant had no
impairment in her back or lower extremities was of diminished probative value as the SOAFs upon
which his opinion was based had no information regarding appellant’s 1991 back injury that
OWCP had accepted under OWCP File No. xxxxxx544. OWCP was directed to combine
appellant’s case files and further develop the issue of permanent impairment of both the upper and
lower extremities given the approved conditions of the upper extremities and low back under File
Nos. xxxxxx704 and xxxxxx544.
On December 31, 2014 OWCP issued a new SOAF which included the accepted conditions
under File Nos. xxxxxx704, xxxxxx544, and xxxxxx845.8
On February 13, 2015 OWCP requested that Dr. Gary Klaud Miller, a Board-certified
orthopedic surgeon, perform an impartial medical evaluation to rate appellant’s permanent
impairment of the left upper extremity.
In a March 12, 2015 report, Dr. Brecher performed another second opinion evaluation of
appellant’s lumbar spine at the request of OWCP. He reviewed the SOAFs, which included
information regarding the combined cases, and the medical record. Examination findings of the
left shoulder, bilateral wrists, and back were provided. Dr. Brecher opined that MMI was reached
for appellant’s back on December 22, 2011 when she saw her treating physician. Utilizing Table
16-12 of the A.M.A., Guides, he opined that there was a class 1 mild problem of the sciatic nerve
as there was mild sensory and motor loss. Dr. Brecher assigned a zero for physical examination
modifier as she had normal gait. He assigned grade modifier 1 for functional history as she had a
mild problem which did not interfere with activities. Dr. Brecher assigned grade modifier 1 for
clinical studies as the MRI scan showed a herniated disc. Therefore, he opined that appellant had
a grade B or 3 percent sensory deficit and 7 percent mild motor deficit for the sciatic nerve, which
totaled 10 percent lower extremity impairment. A copy of Dr. Brecher’s March 6, 2015
impairment calculations worksheet for the lower extremity was provided.

8
OWCP previously issued an October 8, 2014 SOAF which included the accepted conditions under File Nos.
xxxxxx704 and xxxxxx845, but not File No. xxxxxx544.

4

In an April 2, 2015 report, Dr. Miller indicated that an impairment evaluation of appellant’s
left upper extremity only was performed on March 11, 2015. He indicated that she had nearly full
left shoulder motion. Dr. Miller noted that all shoulder motions were painful and appellant had
175 degrees of abduction with 80 degrees of external rotation and 80 degrees of external rotation.
For the accepted left rotator cuff tear, he indicated that appellant had seven percent permanent
impairment of the left upper extremity. Dr. Miller assigned grade 1 modifier for clinical studies,
grade 1 modifier for physical examination, and grade 3 modifier for functional history, which he
indicated moved the base impairment level of five percent to seven percent impairment. For the
left CTS, he utilized Table 15-23 on page 449 and opined that appellant had six percent permanent
left upper extremity impairment. Dr. Miller assigned 3 for physical examination, 1 for testing, 3
for functional limitations, and 1 history, which averaged 2. He placed appellant in class 2 or five
percent impairment. The QuickDash score of 75 raised her grade modification one level.
In a May 25, 2015 DMA report, Dr. Garelick rereviewed appellant’s medical record to
determine her permanent impairment of both upper extremities due to CTS and a left shoulder
rotator cuff tear.9 For the left upper extremity, he reviewed Dr. Miller’s April 2, 2015 report and
indicated that Dr. Miller’s award recommendations of seven percent left upper extremity
impairment for the rotator cuff tear and six percent left upper extremity impairment for the CTS
were reasonable. Dr. Garelick used the Combined Values Chart on page 604 of the A.M.A.,
Guides and found that the total left upper extremity permanent impairment was 13 percent.
For the lower extremity, Dr. Garelick reviewed Dr. Brecher’s March 10, 2015 report.10 He
found that Dr. Brecher’s recommended 10 percent left lower extremity impairment was based on
Table 16-12, page 534 of the A.M.A., Guides, but the July/August 2009 The Guides Newsletter
was utilized to rate lower extremity impairment. Dr. Garelick indicated that Dr. Brecher had noted
mild subjective decreased sensation in the lateral aspect of the left calf into the foot, negative
straight leg raise, and no mention of any lower extremity weakness. He also indicated that, while
a previous MRI scan of the lumbar spine demonstrated a herniated disc at L4-5, there did not
appear to be any radicular signs or symptoms at this time based on Dr. Brecher’s negative straight
leg raise and no documented weakness in the lower extremities. The DMA noted that subjective
complaints of diminished sensation were multifactorial. He noted that under The Guides
Newsletter, nonverifiable radicular complaints were assigned a class 1 impairment, which under
Table 17-4, page 570 resulted in 0 percent lower extremity permanent impairment. Thus, the DMA
found that there was no objective basis for a finding of lower extremity permanent impairment.
He further indicated that MMI occurred on March 24, 2014, as indicated by the prior second
opinion physician, Dr. James Elmes.
Dr. Garelick concluded that appellant had total left upper extremity impairment of 13
percent and total right upper extremity impairment of 10 percent, but no impairment of her lower
extremities.

9

In its May 19, 2015 referral to the DMA, OWCP had listed all the accepted conditions under File Nos. xxxxxx704,
xxxxxx544, and xxxxxx845. It also noted that appellant had received 10 percent schedule award for permanent
impairment of the right upper extremity under File No. xxxxxx845 and 10 percent schedule award for permanent
impairment of the left upper extremity under File No. xxxxxx704.
10

The Board notes that Dr. Brecher’s report is dated March 12, 2015.

5

By decision dated June 19, 2015, OWCP granted appellant a schedule award for an
additional 3 percent permanent impairment of the left upper extremity, for 13 percent total
impairment, but denied entitlement to a schedule award for the lower extremities. The period of
the additional award ran for 9.36 weeks from March 24 to May 28, 2014. The decision noted that
the rating was based upon evidence in master OWCP File No. xxxxxx704 and subsidiary File Nos.
xxxxxx544 and xxxxxx845.
On July 3, 2015 appellant requested an oral hearing before an OWCP hearing
representative. A telephonic hearing was held on October 28, 2015, during which she questioned
why she did not receive a schedule award for 17 percent permanent impairment in keeping with
the May 5, 2014 recommendation of Dr. Garelick. Appellant also questioned why she did not
receive a schedule award for her back problems as Dr. Brecher indicated in his March 10, 2015
supplemental report that she had 10 percent left lower extremity impairment.
OWCP received July 23, November 19, and December 23, 2015 reports from Dr. Chmell,
a January 10, 1992 bilateral lower extremity nerve conduction velocity study, and a report of
appellant having undergone a lumbar facet joint block injection on September 26, 1992.
By decision dated January 14, 2016, the hearing representative affirmed OWCP’s June 19,
2015 decision. He found that the medical evidence of record in appellant’s multiple cases failed
to establish additional permanent impairment of the upper or lower extremities. With regard to
the left upper extremity, the hearing representative noted that Dr. Miller’s impartial report of
March 11, 2015, which the DMA indicated resulted in 13 percent permanent impairment of the
left upper extremity, was properly used rather than Dr. Elmes’ second opinion left upper extremity
rating, which the DMA indicated resulted in 17 percent total impairment.
On December 19, 2016 appellant requested reconsideration. In support of her request, she
resubmitted a copy of Dr. Chmell’s June 29 and 30, 2012 reports pertaining to impairment of her
bilateral upper extremities. Appellant also submitted multiple physical therapy notes, a May 27,
2015 magnetic resonance imaging (MRI) scan of the lumbar spine,11 a June 23, 2016
electromyogram and nerve conduction velocity (EMG/NCV) study,12 and multiple progress
reports from Dr. Chmell dated February 4, 2016 to April 20, 2017.
On October 20, 2016 Dr. Chmell performed an impairment evaluation of appellant’s lower
extremities as a result of her accepted work-related accepted lumbar conditions. In an October 31,
2016 report, he opined that appellant had 13 percent permanent impairment of each of her lower
extremities and that the July/August 2009 The Guides Newsletter was used in calculating the
impairment. Dr. Chmell noted that appellant had all of the criteria to document and demonstrate
lower extremity impairment on both sides as a result of her accepted work-related injury. This
included continued low back pain on both sides, positive straight leg raising on examination
bilaterally, weakness at both ankles and feet with regard to dorsiflexion, sensory deficit on the
11

The May 27, 2015 MRI scan of the lumbar spine indicated advanced spondylosis L4-5 with disc bulging
extending into the foramina, a central protrusion with associated annular tear and moderate bilateral foraminal
stenosis; L3-4 disc bulging with mild right and borderline left foraminal stenosis; and L2-3 minimal far left lateral
protrusion without significant left foraminal stenosis.
12
The June 23, 2016 EMG/NCV report noted bilateral L4-5 and L5-S1 active radiculopathy with sensory nerve
action, but negative for polyneuropathy.

6

dorsum of both feet. Dr. Chmell also related that appellant’s June 23, 2016 EMG demonstrated
bilateral lower extremity radiculopathy and that the MRI scan of her lumbar spine demonstrated
L4-5 advanced spondylolysis with disc herniation and extension of the disc herniation into bilateral
neural foramina. He also opined that appellant had reached MMI on November 13, 2014. A spinal
nerve impairment worksheet indicated that the L5 nerve root caused 13 percent permanent
impairment of the lower extremities due to the above findings.
In a March 30, 2017 report, Dr. David Slutsky, a Board-certified orthopedic surgeon
serving as a DMA, opined that the medical evidence failed to establish any impairment of the
lower extremities. He opined that Dr. Chmell’s October 31, 2016 impairment rating of 13 percent
impairment was insufficient as the physician did not provide any physical examination findings to
grade the apparent sensory loss and apparent motor loss, functional history, or any data to explain
the reasons for his impairment rating. Dr. Slutsky concluded that additional information was
required to determine the impairment rating and date of MMI.
By decision dated April 6, 2017, OWCP denied modification of its January 14, 2016
decision. It found that Dr. Chmell’s October 31, 2016 report was insufficient to establish
additional permanent impairment that would justify an increased schedule award.
On May 31, 2017 appellant requested reconsideration of OWCP’s April 6, 2017 decision.
She alleged that the December 31, 2014 SOAF was outdated and did not include reference to the
MRI scan report of May 27, 2015 or the EMG/NCV report of June 23, 2016. Appellant further
alleged that those reports as well as Dr. Chmell’s spinal nerve impairment worksheet was not sent
to Dr. Slutsky, a DMA, for review. She also alleged that OWCP did not allow her the opportunity
to complete the DMA’s request for additional information.
In support of her request, appellant resubmitted copies of the May 27, 2015 MRI scan of
the lumbar spine and June 23, 2016 EMG/NCV reports, Dr. Chmell’s October 31, 2016 letter and
October 20, 2016 spinal nerve impairment worksheet. Also submitted were letters from
Dr. Chmell dated April 20 and 29, 2017 and reports on appellant’s status from June 9, 2017
onward and physical therapy reports.
By decision dated August 25, 2017, OWCP denied appellant’s request for reconsideration,
finding that the evidence submitted was either repetitious or irrelevant.
LEGAL PRECEDENT -- ISSUE 1
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement FECA program with the Director of OWCP.13 Section 8107 of
FECA sets forth the number of weeks of compensation to be paid for the permanent loss of use of
specified members, functions, and organs of the body.14 FECA, however, does not specify the
manner by which the percentage loss of a member, function, or organ shall be determined. To
ensure consistent results and equal justice under the law, good administrative practice requires the
13

See 20 C.F.R. §§ 1.1-1.4.

14

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C. § 8107(c)(1).

7

use of 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.15
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A., issued a 52-page document entitled, Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment. The document included various
changes to the original text, intended to serve as an erratum/supplement to the first printing of the
A.M.A., Guides. In April 2009, these changes were formally incorporated into the second printing
of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).16 The Board has approved the use by OWCP of the A.M.A., Guides
for the purpose of determining the percentage loss of use of a member of the body for schedule
award purposes.17
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for a decision regarding the extent of
permanent impairment of appellant’s left upper extremity impairment.
Appellant was granted a schedule award totaling 13 percent permanent impairment of the
left upper extremity based upon the April 2, 2015 report of the IME, Dr. Miller. Dr. Miller
provided ROM findings regarding appellant’s left shoulder, but rated appellant’s left shoulder
impairment based upon the diagnosis of left rotator cuff tear.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth edition
of the A.M.A., Guides when granting schedule awards for upper extremity claims. No consistent
interpretation has been followed regarding the proper use of the DBI or the ROM methodology
when assessing the extent of permanent impairment for schedule award purposes.18 The purpose
of the use of uniform standards is to ensure consistent results and to ensure equal justice under the
law to all claimants.19 In T.H., the Board concluded that OWCP’s physicians were at odds over
the proper methodology for rating upper extremity impairment, having observed attending
physicians, evaluating physicians, second opinion physicians, impartial medical examiners, and
district medical advisers use both the DBI and ROM methodologies interchangeably without any
consistent basis. Furthermore, the Board has observed that physicians interchangeably cite to
language in the first printing or the second printing when justifying use of either ROM or DBI
methodology. Because OWCP’s own physicians have been inconsistent in the application of the

15

20 C.F.R. § 10.404; see also Ronald R. Kraynak, 53 ECAB 130 (2001).

16

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (March 2017).
17

Isidoro Rivera, 12 ECAB 348 (1961).

18

T.H., Docket No. 14-0943 (issued November 25, 2016).

19

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

8

A.M.A., Guides, the Board found that OWCP could no longer ensure consistent results and equal
justice under the law for all claimants.20
In order to ensure consistent results and equal justice under the law for cases involving
upper extremity impairment, the Board will set aside the April 6, 2017 decision which denied
modification of the January 14, 2016 decision which found that appellant had 13 percent total left
upper extremity impairment. Utilizing a consistent method for calculating permanent impairment
for upper extremities to be applied uniformly, and such other development as may be deemed
necessary, OWCP shall issue a de novo decision on appellant’s claim for a left upper extremity
schedule award.21
LEGAL PRECEDENT -- ISSUE 2
Neither FECA nor its implementing regulations provide for the payment of a schedule
award for the permanent loss of use of the back/spine or the body as a whole.22 However, a
schedule award is permissible where the employment-related spinal condition affects the upper
and/or lower extremities.23 The sixth edition of the A.M.A., Guides provides a specific
methodology for rating spinal nerve extremity impairment.24 It was designed for situations where
a particular jurisdiction, such as FECA, mandated ratings for extremities and precluded ratings for
the spine. The FECA-approved methodology is premised on evidence of radiculopathy affecting
the upper and/or lower extremities. The appropriate tables for rating spinal nerve extremity
impairment are incorporated in the procedure manual.25
OWCP’s procedures provide that, if a claimant’s physician provides an impairment rating,
the case 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.26
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. The claimant has the burden to establish entitlement to FECA benefits; however, OWCP
shares responsibility in the development of the evidence to see that justice is done.27 Once OWCP

20

5 U.S.C. § 8123(a); see N.D., Docket No. 15-1392 (issued December 9, 2015); Gloria J. Godfrey, 52 ECAB
486 (2001).
21

FECA Bulletin No. 17-0006 (issued May 8, 2017).

22

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

23

Supra note 16 at Chapter 2.808.5c(3) (March 2017).

24

The methodology and applicable tables were initially published in The Guides Newsletter, Rating Spinal Nerve
Extremity Impairment Using the Sixth Edition (July/August 2009). Id.
25

See supra note 16 at Chapter 3.700, Exhibit 4.

26

See supra note 16 at Chapter 2.808.6(e) (March 2017); Tommy R. Martin, 56 ECAB 273 (2005).

27

William J. Cantrell, 34 ECAB 1223 (1983).

9

undertakes development of the record, it must do a complete job in procuring medical evidence
that will resolve the relevant issues in the case.28
ANALYSIS -- ISSUE 2
The Board also finds that this case is not in posture for decision regarding whether appellant
has established permanent impairment of her lower extremities as a result of her accepted lumbar
conditions.
By decision dated June 19, 2015, OWCP denied appellant’s claim for a schedule award for
her lower extremities. Appellant requested a hearing and by decision dated January 14, 2016, a
hearing representative affirmed OWCP’s June 19, 2015 decision.
On December 19, 2016 appellant requested reconsideration and submitted additional
evidence including an October 31, 2016 report of Dr. Chmell, wherein he opined that appellant
had 13 percent permanent impairment of each of her lower extremities. The July/August 2009 The
Guides Newsletter was used in calculating the impairment and he cited to specific physical
examination findings and diagnostic test results which noted pain, weakness, and sensory deficits.
In a March 30, 2017 report, Dr. Slutsky, serving as a DMA rejected the lower extremity
impairment ratings as calculated by Dr. Chmell. However, the DMA noted that additional
information was required to properly calculate the extent of permanent impairment of appellant’s
bilateral lower extremities. He noted that he needed a detailed history of appellant’s current
functional history and gait analysis, a thorough sensory examination of the involved lower
extremity to both light touch and pinprick, and a motor examination of the involved lower
extremity and grading according to the British medical research and Council criteria.
It is well established that proceedings under FECA are not adversarial in nature, and while
the employee has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.29 Once OWCP undertook development of the
evidence by referring appellant to a second opinion physician and Dr. Slutsky, it had an obligation
to do a complete job and obtain a proper evaluation and report that would resolve the issue in this
case.30 The Board will, therefore, set aside OWCP’s April 6, 2017 decision and remand the case
for a physician to conduct a full physical examination followed by a proper analysis under the
A.M.A., Guides in order to determine the extent of appellant’s lower extremity impairment, if any.
After such further development as deemed necessary, OWCP shall issue a de novo decision on
appellant’s claim for a lower extremity schedule award.

28

Richard F. Williams, 55 ECAB 343, 346 (2004).

29

Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

30

Peter C. Belkind, 56 ECAB 580 (2005); Ayanle A. Hashi, 56 ECAB 234 (2004).

10

CONCLUSION
The Board finds that the case is not in posture for decision.31
ORDER
IT IS HEREBY ORDERED THAT the August 25 and April 6, 2017 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded for further
action consistent with this decision.
Issued: October 16, 2018
Washington, DC

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

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

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

31

In light of the disposition of Issues 1 and 2, the third issue is rendered moot and will not be addressed.

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Washington Township, NJ, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 19-1619
Issued: May 22, 2020

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge
On July 18, 2019 appellant filed a timely appeal from a January 22, 2019 merit decision1
and an April 1, 2019 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP).2 The Clerk of the Appellate Boards docketed the appeal as No. 19-1619.
On June 18, 2018 appellant, then a 47-year-old city carrier, filed a notice of recurrence
(Form CA-2a) alleging that on June 16, 2018 he sustained a recurrence of his March 8, 2018 injury
when he stumbled up a customer’s steps when delivering mail while in the performance of duty.
1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from January 22, 2019, the date of OWCP’s last decision, was
July 21, 2019. As this fell on a Sunday, appellant had until Monday, July 22, 2019 to file the appeal from the
January 22, 2019 decision. Since using July 25, 2019, the date the appeal was received by the Clerk of the Appellate
Boards, would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of
the U.S. Postal Service postmark is July 18, 2019, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

The Board notes that appellant submitted additional evidence on appeal. 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.

He stopped work on June 16, 2018. In a July 25, 2018 memorandum, OWCP determined that
appellant’s recurrence claim should be converted into a new claim for a traumatic injury.
A June 20, 2018 duty status report (Form CA-17) bearing an illegible signature diagnosed
hamstring strain as of June 16, 2018.
By development letter dated August 3, 2018, OWCP advised appellant that his claim was
converted into a new traumatic injury claim. It requested additional factual and medical evidence
and provided a questionnaire for his completion. OWCP afforded appellant 30 days to respond.
OWCP subsequently received an August 1, 2018 report from Dr. Shawn Trokhan, a Boardcertified orthopedic surgeon, noted that appellant was under his care for left leg pain. Dr. Trokhan
indicated that he could not provide restrictions until a magnetic resonance imaging (MRI) scan
was performed.
In an August 27, 2018 report, Dr. Trokhan diagnosed a posterior thigh muscle group strain
and noted that appellant’s worsening pain was due to an increased workload, per the patient.
By decision dated September 5, 2018, OWCP denied appellant’s claim. It found that the
medical evidence of record was insufficient to establish an injury/medical condition causally
related to the accepted employment events. OWCP specifically noted receipt of Dr. Trokhan’s
August 1, 2018 report, but did not note receipt of his August 27, 2018 report.
On December 21, 2018 appellant requested reconsideration. OWCP received an
October 1, 2018 follow-up report from Dr. Trokhan. Dr. Trokhan related that appellant had been
under an eight-hour-a-day work restriction; however, he had been required to work more than eight
hours a day, which caused his fall, the hyperextension injury to his left leg, and aggravation of his
posterior thigh muscle condition.
By decision dated January 22, 2019, OWCP denied modification of its September 5, 2018
decision. It noted that it had received Dr. Trokhan’s October 1, 2018 report, but the medical
evidence of record did not provide a valid diagnosis of appellant’s condition.
Appellant requested reconsideration on February 25, 2019.
additional evidence.

He did not submit any

In an April 1, 2019 decision, OWCP denied appellant’s request for reconsideration, finding
that his request neither raised a substantial legal argument nor provided new and relevant medical
evidence, therefore, his request was insufficient to require merit review.
The Board has duly considered the matter and finds that the case is not in posture for a
decision. In the case of William A. Couch,3 the Board held that when adjudicating a claim, OWCP
is obligated to consider all evidence properly submitted by a claimant and received by OWCP
before the final decision is issued.

3

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

2

In an August 27, 2018 report Dr. Trokhan, diagnosed appellant’s condition as posterior
thigh muscle group strain. In the January 22, 2019 decision, which reviewed the merits of
appellant’s claim, OWCP found that the evidence of record did not contain a valid diagnosis of
appellant’s condition. As OWCP did not consider the August 27, 2018 report from Dr. Trokhan,
it failed to follow its procedures by properly discussing all of the relevant evidence of record.4
It is crucial that OWCP address all relevant evidence received prior to the issuance of its
final decision, as the Board’s decisions are final with regard to the subject matter appealed.5 The
Board finds that this case is not in posture for decision, as OWCP did not review the August 27,
2018 report from Dr. Trokhan in its January 22, 2019 merit decision.6 On remand, OWCP shall
review all evidence of record and, following any further development as it deems necessary, it
shall issue a de novo decision.7 Accordingly,

“All evidence submitted should be reviewed and discussed in the decision. Evidence received following
development that lacks probative value should also be acknowledged. Whenever possible, the evidence should be
referenced by author and date.” Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Denials, Chapter
2.1401.5(b)(2) (November 2012).
4

5

See C.S., Docket No. 18-1760 (issued November 25, 2019); Yvette N. Davis, 55 ECAB 475 (2004); see also
William A. Couch, supra note 3.
6

See V.C., Docket No. 16-0694 (issued August 19, 2016).

7

In light of the Board’s disposition with regard to the merits of the case, the issue of whether OWCP properly
denied appellant’s request for reconsideration of the merits of the case pursuant to 5 U.S.C. § 8128(a) is rendered
moot.

3

IT IS HEREBY ORDERED THAT the April 1 and January 22, 2019 decisions of the
Office of Workers’ Compensation Programs are set aside, and the case is remanded to OWCP for
further action consistent with this order of the Board.
Issued: May 22, 2020
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, St. Cloud, MN, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Jesse C. Stewart, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 15-0980
Issued: September 26, 2016

Case Submitted on the Record

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

JURISDICTION
On March 31, 2015 appellant timely appealed a January 29, 2015 merit decision of the
Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the Federal Employees’
Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the claim.
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) (2014). 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 (2006). Demands for
payment of fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for
investigation.
2

Appellant initially filed this appeal pro se and then obtained legal representation on April 10, 2015. Her counsel
subsequently requested oral argument. However, the Board exercised its discretion and denied the request pursuant
to 20 C.F.R. § 501.5(a). See Order Denying Request for Oral Argument, Docket No. 15-0980 (issued
August 17, 2016).
3

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $141,365.35 for the period June 17, 2005 through August 2, 2008; and (2) whether
she was at fault in creating the overpayment, thereby precluding waiver of recovery.
FACTUAL HISTORY
Appellant, a 76-year-old former quality assurance clinical reviewer, sustained injuries to
her neck, low back, right shoulder, and right knee/leg when she slipped and fell at work on
September 9, 1990 (File No. xxxxxx004). Her accepted conditions include low back strain, right
knee/leg strain, right shoulder impingement, aggravation of preexisting cervical strain,
aggravation of spinal stenosis, and permanent aggravation of lumbar degenerative joint disease.
Appellant sustained another work-related traumatic injury on July 26, 1993, which OWCP
initially accepted for left knee degenerative arthritis (File No. xxxxxx039).4 On September 25,
1995 she underwent left knee arthroscopic surgery, and on November 29, 1995 she had lumbar
surgery. OWCP authorized both surgical procedures.
Effective May 11, 2002 appellant accepted a disability retirement annuity from the Office
of Personnel Management (OPM). However, she subsequently elected to receive FECA wageloss benefits in lieu of OPM benefits.
On September 18, 2003 OWCP terminated appellant’s medical benefits with respect to
her left knee condition and denied authorization for left knee arthroplasty. In a separate decision,
also dated September 18, 2003, it terminated appellant’s medical benefits with respect to her
right knee/leg strain and aggravation of preexisting cervical strain. However, appellant remained
eligible for medical benefits with respect to her accepted lumbar and right shoulder conditions.
By decision dated December 22, 2003, OWCP terminated appellant’s entitlement to
wage-loss compensation and schedule award benefits because of her refusal to accept suitable
work, pursuant to 5 U.S.C. § 8106(c)(2).5 It issued its December 22, 2003 decision under File
No. xxxxxx039. Appellant requested reconsideration.

4

OWCP subsequently expanded the July 26, 1993 traumatic injury claim to include exacerbation of chronic pain
of the left knee and right shoulder. Additionally, it combined the September 9, 1990 and July 26, 1993 traumatic
injury claims and designated the latter claim as the master File No. (xxxxxx039).
5

On August 20, 2003 the employing establishment offered appellant a limited-duty assignment as a social
services assistant, which appellant declined. On September 29, 2003 OWCP advised appellant that it considered the
offered position suitable in accordance with the July 11 and September 28, 2001 medical restrictions identified by
Dr. Teresa L. Gurin, a Board-certified physiatrist and impartial medical examiner. Additionally, it advised appellant
that she had 30 days to either accept the job offer or submit factual and/or medical evidence explaining her
continued refusal. Appellant did not accept the position citing medical evidence indicating an inability to resume
work due to her orthopedic condition and chronic pain. On October 30, 2003 OWCP indicated that it had
considered appellant’s reasons for refusing the position and did not find them to be valid. Consequently, it afforded
appellant an additional 15 days to accept the offered position and arrange for a report date. Moreover, OWCP
advised appellant that, if she did not accept the position by November 14, 2003, her entitlement to wage-loss
compensation and schedule award benefits would be terminated in accordance with 5 U.S.C. § 8106(c)(2).

2

On January 3, 2005 OWCP denied modification of its December 22, 2003 decision
terminating appellant’s entitlement to wage-loss compensation and schedule award benefits
pursuant to 5 U.S.C. § 8106(c)(2).
On June 17, 2005 appellant underwent a left total knee arthroplasty, which OWCP
authorized under her September 9, 1990 traumatic injury claim (File No. xxxxxx004).
By letter dated September 14, 2005, OWCP advised appellant that she was eligible to
receive compensation for her “left total knee replacement only.” (Emphasis in the original.) It
specifically referenced appellant’s September 9, 1990 employment injury under File No.
xxxxxx004. Appellant subsequently filed a claim for compensation (Form CA-7) referencing
File No. xxxxxx004, which the employing establishment forwarded to OWCP on
October 5, 2005.
On November 22, 2005 OWCP advised appellant that she was entitled to wage-loss
compensation beginning June 17, 2005. It placed her on the periodic compensation rolls
effective October 30, 2005. Although appellant filed her Form CA-7 under the September 9,
1990 claim (File No. xxxxxx004), OWCP’s November 22, 2005 award letter referenced File No.
xxxxxx039 with a July 26, 1993 date of injury. Appellant had been receiving OPM retirement
benefits, but elected instead to receive FECA wage-loss compensation effective June 17, 2005.
OWCP continued to pay her wage-loss compensation for temporary total disability through
August 2, 2008. For this period, June 17, 2005 through August 2, 2008, it paid appellant
$141,365.35.
Effective August 3, 2008 OWCP terminated appellant’s wage-loss compensation in light
of its December 22, 2003 decision sanctioning her under 5 U.S.C. § 8106(c)(2).6 OPM
subsequently resumed payment of retirement benefits.
More than five years elapsed before OWCP initiated overpayment proceedings. The
action was prompted by a series of inquiries from the employing establishment beginning in
October 2013. OWCP initially disagreed with the employing establishment’s position that an
overpayment existed.
Furthermore, it questioned whether it had properly suspended
compensation benefits in August 2008, but the employing establishment was persistent in
challenging appellant’s receipt of compensation for the period June 17, 2005 through
August 2, 2008.
On April 4, 2014 OWCP issued a preliminary determination of an overpayment of
compensation in the amount of $141,365.35. It explained that because appellant had been
sanctioned under 5 U.S.C. § 8106(c)(2) effective December 27, 2003, she was not entitled to the
wage-loss compensation she received for the period June 17, 2005 through August 2, 2008.
Additionally, OWCP determined that appellant was at fault in creating the overpayment as she
knowingly accepted compensation she was not entitled to receive.
Appellant timely requested a prerecoupment hearing before an OWCP hearing
representative, which was held on November 13, 2014. She challenged the overpayment on the
6

OWCP initially discovered the error in May 2007, but did not suspend compensation at the time. It revisited the
issue more than a year later when responding to a July 21, 2008 Congressional inquiry.

3

basis that OWCP advised her on September 14, 2005 that she was eligible to receive
compensation for her left knee replacement.7 Additionally, appellant submitted an overpayment
recovery questionnaire (Form OWCP-20), which revealed that her then-current monthly income
($3,856.85) exceeded her monthly expenses ($3,154.69) by more than $700.00.
In a January 29, 2015 decision, an OWCP hearing representative finalized the
preliminary overpayment determination in all respects, including finding appellant at fault.
Notwithstanding OWCP’s September 14, 2005 correspondence advising appellant that she was
eligible to receive compensation, the hearing representative found that the December 22, 2003
decision put appellant on notice that she was not entitled to additional compensation under File
No. xxxxxx039. Because appellant was at fault in creating the overpayment, the hearing
representative denied waiver of recovery. Additionally, she found that appellant’s monthly
income exceeded her monthly expenses, and therefore, she could repay $500.00 each month.8
LEGAL PRECEDENT -- ISSUE 1
A partially disabled employee who refuses or neglects to work after suitable work is
offered to, procured by, or secured for him or her is not entitled to compensation.9 It is the
employee’s burden to show that this refusal or failure to work was reasonable or justified.10
Whether an employee has the ability to perform an offered position is primarily a medical
question that must be resolved by the medical evidence.11 In evaluating the suitability of a
particular position, OWCP must consider the employment-related condition(s), as well as
preexisting and subsequently acquired medical conditions.12 If medical reports in the file
document a condition which has arisen since the compensable injury, and this condition disables
the claimant from the offered job, the position will be considered unsuitable even if the
subsequently acquired condition is not work related.13
When OWCP considers a job to be suitable, it shall advise the employee of its finding
and afford her 30 days to either accept the job or present any reasons to counter OWCP’s finding
of suitability.14 If the employee presents such reasons and OWCP determines that the reasons
7

Appellant also noted that OWCP’s claims examiner who advised her of her eligibility on September 14, 2005
was the same individual who issued the April 4, 2014 preliminary determination and found her at fault for accepting
those payments.
8

OPM has been withholding funds from appellant’s federal retirement annuity. Because appellant is not
currently receiving FECA compensation benefits, the manner in which OWCP recovers the overpayment is not an
issue currently before the Board. See Judith A. Cariddo, 55 ECAB 348, 353 (2004).
9

5 U.S.C. § 8106(c)(2); 20 C.F.R. § 10.517.

10

Id. at § 10.517.

11

Gayle Harris, 52 ECAB 319, 321 (2001).

12

Id.; Martha A. McConnell, 50 ECAB 129, 132 (1998).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers & Return to Work, Chapter 2.814.4c(7)
(June 2013).
14

20 C.F.R. § 10.516.

4

are unacceptable, it will notify the employee of that determination and further inform the
employee that she has 15 days within which to accept the offered work without penalty.15 If the
employee declines the position after having received both a 30-day notice and a 15-day notice,
OWCP will terminate entitlement to further wage-loss compensation and schedule award
benefits.16 However, the employee remains entitled to medical benefits.17
ANALYSIS -- ISSUE 1
By decision dated December 22, 2003, OWCP terminated appellant’s entitlement to
wage-loss compensation and schedule award benefits pursuant to 5 U.S.C. § 8106(c)(2). On
January 3, 2005 OWCP denied modification of its December 22, 2003 decision. Neither
appellant nor her representative timely requested further review of OWCP’s January 3, 2005
merit decision.18 Accordingly, the December 22, 2003 decision remains in effect to date, thereby
precluding entitlement to compensation benefits on or after December 27, 2003.
On appeal, counsel argues that the December 22, 2003 decision only pertained to File No.
xxxxxx039, and therefore, appellant was eligible to receive wage-loss compensation under File
No. xxxxxx004, as indicated by OWCP in its September 14, 2005 correspondence. Although
OWCP’s September 14, 2005 correspondence advised that appellant was eligible to receive
compensation for her “left total knee replacement only,” and specifically referenced her
September 9, 1990 injury under File No. xxxxxx004, OWCP ultimately paid compensation under
File No. xxxxxx039.19 The November 22, 2005 wage-loss compensation award letter
specifically referenced File No. xxxxxx039 with a July 26, 1993 date of injury.
Having refused an offer of suitable employment, appellant was not entitled to further
compensation on all claims where the injury occurred prior to OWCP’s December 22, 2003
termination decision.20 Despite OWCP’s authorization of the June 2005 left total knee
arthroplasty, appellant was not entitled to wage-loss compensation she received for the period
June 17, 2005 through August 2, 2008. The record reveals that OWCP overpaid her
$141,365.35. Accordingly, the Board affirms OWCP’s findings with respect to the fact and
amount of overpayment.

15

Id. The 15-day notification need not explain why OWCP found the employee’s reasons for refusal
unacceptable. Id.
16

20 C.F.R. § 10.517(b).

17

Id.

18

The propriety of OWCP’s December 22, 2003 suitable work termination is not an issue currently before the
Board. See 20 C.F.R. § 501.3(e).
19

Moreover, File No. xxxxxx004 involved appellant’s right knee, not her left. Counsel offered no plausible
explanation for appellant’s purported entitlement to compensation for a left knee condition ostensibly unrelated to
her September 9, 1990 injury under File No. xxxxxx004.
20

20 C.F.R. § 10.517(b).

5

LEGAL PRECEDENT -- ISSUE 2
OWCP may consider waiving an overpayment only if the individual to whom it was
made was not at fault in either accepting or creating the overpayment.21 Each recipient of
compensation benefits is responsible for taking all reasonable measures to ensure that payments
she receives from OWCP are proper.22 The recipient must show good faith and exercise a high
degree of care in regard to receipt of their benefits.23 A recipient will be found to be at fault with
respect to creating an overpayment if she “[a]ccepted a payment which [she] knew or should
have known to be incorrect.”24
A benefits recipient may be found without fault where the overpayment resulted from an
individual’s action or inaction based on misinformation supplied by either OWCP or the
employing establishment.25
An individual who is without fault in creating or accepting an overpayment is nonetheless
subject to recovery of the overpayment unless adjustment or recovery would defeat the purpose
of FECA or would be against equity and good conscience.26 Recovery of an overpayment will
defeat the purpose of FECA if such recovery would cause hardship to a current or former
beneficiary because the beneficiary from whom OWCP seeks recovery needs substantially all of
his 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.27 Additionally, recovery of an overpayment is considered to be against equity and good
conscience when an individual who received an overpayment would experience severe financial
hardship in attempting to repay the debt or when an individual, in reliance on such payment or on
notice that such payments would be made, relinquished a valuable right or changed his position
for the worse.28
The individual who received the overpayment is responsible for providing information
about income, expenses, and assets as specified by OWCP.29 This information is necessary for
21

Id. at § 10.433(a).

22

Id.

23

Id.

24

20 C.F.R. § 10.433(a)(3).

25

In such cases, there must be documentation to show that misinformation was communicated. Furthermore,
there cannot be any evidence that the individual knew or should have known the proper course of action to be
followed. Federal (FECA) Procedure Manual, Part 6 - Debt Management, Initial Overpayment Actions, Chapter
6.200.5b(2) (June 2009).
26

5 U.S.C. § 8129(b); 20 C.F.R. §§ 10.433, 10.434, 10.436, 10.437.

27

20 C.F.R. § 10.436(a), (b). For an individual with no eligible dependents the asset base is $4,800.00. The base
increases to $8,000.00 for an individual with a spouse or one dependent, plus $960.00 for each additional dependent.
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6a(1)(b) (June 2009).
28

20 C.F.R. § 10.437(a), (b).

29

Id. at § 10.438(a).

6

determining whether a waiver of recovery of the overpayment is warranted.30 The information is
also used to determine an appropriate repayment schedule, if necessary.31 Failure to submit the
requested information within 30 days of the request shall result in denial of waiver.32
ANALYSIS -- ISSUE 2
Both the claims examiner and the hearing representative found appellant at fault because
she accepted payments which she knew or should have known to be incorrect. Whether an
individual is at fault in creating an overpayment depends on the circumstance of the
overpayment.33 The degree of care expected may vary with the complexity of those
circumstances and the individual’s capacity to realize that she is being overpaid.34 In
determining fault OWCP applies a “reasonable person” standard.35
Although the December 22, 2003 decision clearly advised appellant that she was no
longer entitled to receive compensation due to her refusal to accept suitable employment, OWCP
subsequently misinformed appellant that she was “eligible to receive compensation for [her] left
total knee replacement only.” OWCP’s claims examiner who misinformed appellant on
September 14, 2005 is the same claims examiner who initially found appellant at fault for
essentially following her advice to file a Form CA-7. As noted, a benefits recipient may be
found without fault where the overpayment resulted from an individual’s action or inaction based
on misinformation supplied by either OWCP or the employing establishment.36
By decision dated September 18, 2003, OWCP terminated medical benefits with respect
to appellant’s July 26, 1993 left knee injury. At the time, there was a pending request for
authorization for left knee arthroplasty, which it denied. However, in April 2005, OWCP
reversed course and authorized a total knee arthroplasty under File No. xxxxxx004. After
undergoing left knee surgery on June 17, 2005, appellant submitted an election of benefits form
to OWCP requesting a transfer to FECA rolls effective June 17, 2005. She also noted that
OWCP had authorized a total knee replacement.
The September 14, 2005 correspondence from OWCP appears to have been in response
to the election of benefits form appellant filed. As indicated, OWCP informed appellant that she
was “eligible to receive compensation for [her] left total knee replacement only.” The claims
examiner advised appellant that she needed to submit a Form CA-7 in order to receive
compensation. The claims examiner further explained that OWCP could not pay benefits until it
received confirmation from OPM that appellant’s retirement benefits had been suspended.
30

Id.

31

Id.

32

Id. at § 10.438(b).

33

Id. at § 10.433(b).

34

Id.; J.S., 58 ECAB 515, 521-22 (2007).

35

L.D., 59 ECAB 673, 679 (2008).

36

Federal (FECA) Procedure Manual, supra note 25.

7

Appellant subsequently filed the Form CA-7 as instructed, and OPM confirmed that her benefits
were suspended effective September 1, 2005. On November 22, 2005 OWCP advised her of her
entitlement to wage-loss compensation retroactive to June 17, 2005. Appellant received a lumpsum payment of $12,628.33, and OWCP placed her on the periodic compensation rolls, effective
October 30, 2005.
The Board finds that the $141,365.35 overpayment of compensation appellant received
was the result of misinformation provided by OWCP. Appellant is precluded from receiving
additional compensation based on the December 22, 2003 decision. However, OWCP’s
April 2005 authorization of a total knee arthroplasty and the misinformation it provided her on
September 14, 2005 regarding her eligibility for compensation ostensibly nullified the
December 22, 2003 suitable work termination. One cannot reasonably conclude under these
circumstances that appellant knew or should have known that the 5 U.S.C. § 8106(c)(2) sanction
remained in effect at the time she began receiving wage-loss compensation on
November 22, 2005.37 Accordingly, OWCP’s finding that appellant was at fault in creating the
overpayment shall be reversed. The case will be remanded to OWCP for consideration of waiver
of recovery of the overpayment and for a determination of whether recovery of the overpayment
would defeat the purpose of FECA or would be against equity and good conscience.
Additionally, OWCP shall provide appellant the opportunity to submit an updated Form OWCP20 with information regarding her current income, expenses, assets, and liabilities.38 After
appropriate development, OWCP shall issue a de novo decision.
CONCLUSION
Appellant received an overpayment of compensation in the amount of $141,365.35 for
the period June 17, 2005 through August 2, 2008. However, OWCP incorrectly found her at
fault in creating the overpayment.

37

Even after suspending compensation in August 2008, OWCP questioned whether its decision was proper.

38

The Board notes that for the period appellant was improperly paid FECA benefits, June 17, 2005 through
August 2, 2008, she had voluntarily foregone receipt of OPM retirement benefits so as to avoid the receipt of a
prohibited dual benefit. See supra note 28.

8

ORDER
IT IS HEREBY ORDERED THAT the January 29, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed in part and reversed in part, and the case is
remanded for further action consistent with this decision.
Issued: September 26, 2016
Washington, DC

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

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

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

9