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

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

Docket No. 14-535
Issued: June 9, 2014

Case Submitted on the Record

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

JURISDICTION
On January 9, 2014 appellant filed a timely appeal from an October 29, 2013 merit
decision of the Office of Workers’ Compensation Programs’ (OWCP) schedule award. Pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established additional impairment to his right upper
extremity, for which he had previously received a schedule award.
FACTUAL HISTORY
On May 14, 1997 appellant, a 48-year-old city carrier, injured his right knee, right leg and
right shoulder while trying to break a fall. He filed a claim for benefits, which OWCP accepted for
fractured right ankle, right shoulder sprain and right knee sprain. The claim was ultimately
1

5 U.S.C. § 8101 et seq.

expanded to include the following conditions: injury to right ulnar nerve; lesion of right ulnar
nerve; ganglion of right joint; sprain of right shoulder and right upper arm, other specified sites;
lateral malleolus of the right ankle; rotator cuff syndrome of the right shoulder and allied disorders;
closed fracture of the right scapular, acromial process; and closed FX shaft of the right humerus.
By decision dated February 26, 1999, OWCP granted appellant a schedule award for a
two percent permanent impairment of the right upper extremity/right shoulder for the period
November 9, 1998 to May 12, 1999, for a total of 18.40 weeks of compensation, pursuant to the
American Medical Association, Guides to the Evaluation of Permanent Impairment
(5th ed. 2001).
By decision dated May 3, 2007, OWCP granted appellant a schedule award for an
additional 40 percent permanent impairment of the right upper extremity for the period
March 18, 2007 to August 7, 2009, for a total of 124.8 weeks of compensation, under the
A.M.A., Guides (5th ed. 2001).
By decision dated October 28, 2010, OWCP granted appellant a schedule award for an
additional 11 percent impairment of the right upper extremity (right arm/right shoulder) for the
period August 4, 2010 to April 1, 2011, for a total of 34.32 weeks of compensation, under the
updated A.M.A., Guides (6th ed. 2008).
On November 12, 2012 appellant underwent total arthroplasty surgery to remove a right
shoulder prosthesis, which had been implanted in the glenohumeral joint; a new glenoid and
proximal humeral prosthesis was implanted to replace the old prosthesis. The procedure, which
was authorized by OWCP, was performed by Dr. Rodney J. Stanley, a specialist in family and
sports medicine and appellant’s treating physician, who executed open treatment of the humeral
shaft fracture with plate/screws and cerclage.
In a September 13, 2013 report, Dr. Stanley found that appellant had an additional four
percent impairment from his accepted right shoulder condition based on a right shoulder
prosthesis removal and replacement. Using the diagnosis-based method of impairment
calculation, he utilized Table 15-5, page 405 of the A.M.A., Guides, the Shoulder Regional Grid,
to find that appellant had a class 3 impairment for shoulder prosthesis removal and replacement,
shoulder arthroplasty, for “complicated, unstable or infected,” noting that appellant had required
removal of a right shoulder prosthesis and the implantation of a new prosthesis in the shoulder.
Applying the net adjustment formula at section 15.3, pages 406, 410 and 411 of the A.M.A.,
Guides,2 Dr. Stanley found that the grade modifier at Table 15-7, page 406 for functional history
was 4, for a severe problem, because appellant had pain of a severe nature even at rest, as
medications did not alleviate his discomfort. Dr. Stanley advised that appellant was unable to
perform certain self-care activities and required the assistance of his wife with dressing, bathing
and routine hygiene. He stated that the grade modifier for physical examination at Table 15-8,
page 408 was 4, for very severe palpatory findings consistently documented and supported by
observed severe abnormalities, gross instability and very severe decrease of range of motion, as
measured according to pages 472-76, figures 15-28, 15-29, 15-30 and Table 15-34; and the grade
2

A.M.A., Guides at 406, 410-11.

2

modifier for clinical studies at Table 15-9, page 407-11 was 3, as the clinical studies of record
confirmed a diagnosis with severe pathology.
Pursuant to the net adjustment formula set forth at Table 15-21, pages 409-11,
Dr. Stanley determined that appellant had an adjusted, default grade E impairment, which
yielded a class 3 complicated, unstable or infected shoulder arthroplasty, equated to a 46 percent
impairment of the right upper extremity at Table 15-5, page 405.3 Utilizing the Combined
Values Chart at pages 605-06 of the A.M.A., Guides, he combined the prior 11 percent
impairment for the lower arm4 with a 46 percent impairment for the upper arm for a total
57 percent right upper extremity impairment. Dr. Stanley then stated that, as appellant had
previously been awarded 53 percent right upper extremity impairment, this should be deducted
from his rating, so that he recommended an additional 4 percent impairment of the right upper
extremity pursuant to Chapter 16 of the A.M.A., Guides.
In an October 8, 2013 report, an OWCP medical adviser stated his concurrence with
Dr. Stanley’s findings and conclusions and found that appellant had an additional four percent
impairment of the right upper extremity under the sixth edition of the A.M.A., Guides for a total
57 percent right upper extremity impairment.
On October 15, 2013 appellant filed a Form CA-7 claim for an additional schedule award
based on a partial loss of use of his right upper extremity.
By decision dated October 29, 2013, OWCP granted appellant a schedule award for an
additional four percent permanent impairment of the right upper extremity for the period
September 13 to December 9, 2013, for a total of 12.48 weeks of compensation.
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.7 The claimant has the burden of proving

3

Id. at 405.

4

Dr. Stanley stated that appellant had a prior 21 percent award for the right upper extremity/lower arm; evidently
this was a typographical error, as the October 28, 2010 award was for an 11 percent additional right upper extremity
impairment and 46 percent added to 11 percent totaled the 57 percent rating he recommended in this evaluation.
5

5 U.S.C. § 8107.

6

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

7

Id.

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that the condition for which a schedule award is sought is causally related to his or her
employment.8
ANALYSIS
OWCP previously awarded appellant a total 53 percent impairment for various accepted
conditions of the right arm and right shoulder. It authorized Dr. Stanley to implant a right
shoulder prosthesis, which subsequently required removal and the implantation of a new
prosthesis in the right shoulder. Appellant requested an additional schedule award for these
procedures. OWCP’s medical adviser reviewed Dr. Stanley’s September 13, 2013 report and
found that appellant had an additional four percent right upper extremity impairment based on
removal and the implantation of a new prosthesis in the right shoulder under the diagnosis-based
method of impairment calculation. Dr. Stanley utilized Table 15-5, page 405 of the A.M.A.,
Guides, the Shoulder Regional Grid and found that appellant had a class 3 impairment for
shoulder prosthesis removal and replacement, shoulder arthroplasty, under the category of
“complicated, unstable or infected” procedures and found that appellant had a severe impairment
stemming from this procedure. Applying the net adjustment formulas at section 15.3, pages 406,
410 and 411 of the A.M.A., Guides, Table 15-21, pages 409-11 of the A.M.A., Guides and the
Combined Values Chart at pages 605-06 of the A.M.A., Guides, he combined the prior 11
percent impairment for the lower arm with a 46 percent impairment for the upper arm, for a total
57 percent right upper extremity impairment. Dr. Stanley deducted the previously awarded 53
right upper extremity impairment from this total and found that appellant had an additional
4 percent impairment of the right upper extremity, stemming from the removal and the
implantation of a new prosthesis in the right shoulder, pursuant to Chapter 16 of the A.M.A.,
Guides.
The Board finds that Dr. Stanley’s September 13, 2013 impairment rating, the only
impairment rating rendered in conformance with the applicable protocols and tables of the
A.M.A., Guides, represented the weight of the medical evidence in this case.9 As the record
contains no other probative, rationalized medical opinion which indicates that appellant is
entitled to a greater schedule award based on his accepted right shoulder conditions, OWCP
properly granted him a schedule award for an additional four percent right upper extremity
impairment in its October 29, 2013 decision.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.

8

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

9

The Board notes that a description of appellant’s impairment must be obtained from his physician, which must
be in sufficient detail so that the claims examiner and others reviewing the file will be able to clearly visualize the
impairment with its resulting restrictions and limitations. See Peter C. Belkind, 56 ECAB 580, 585 (2005).

4

CONCLUSION
The Board finds that appellant is not entitled to an additional award for the right upper
extremity, for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the October 29, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 9, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting 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
__________________________________________
Y.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Capitol Heights, MD, Employer
__________________________________________

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Docket No. 14-1179
Issued: September 5, 2014

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

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On April 21, 2014 appellant, through counsel, timely appealed the February 27, 2014
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 greater than one percent permanent impairment of the
left lower extremity.
FACTUAL HISTORY
Appellant, a 49-year-old mail carrier, has an accepted traumatic injury claim for left
ankle deltoid ligament sprain, which occurred on July 1, 2009.2 OWCP approved an October 19,
1

5 U.S.C. §§ 8101-8193 (2006).

2

Appellant was walking through grass delivering mail when she stepped on a rock and twisted her left ankle.

2009 left ankle arthroscopic procedure, which included debridement of a partial tear of the
deltoid ligament. Appellant received wage-loss compensation for temporary total disability. On
August 10, 2010 she returned to work in a light-duty capacity. Appellant subsequently filed a
claim for a schedule award (Form CA-7).
Dr. Uchenna R. Nwaneri, a Board-certified orthopedic surgeon, provided an August 18,
2011 impairment rating under the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (2008).3 He diagnosed a partial tear of the left deltoid
ligament, which was causally related to appellant’s July 1, 2009 employment injury. According
to Dr. Nwaneri, appellant had reached maximum medical improvement (MMI). He calculated a
combined 42 percent left lower extremity (LLE) impairment. Dr. Nwaneri’s rating included 25
percent impairment under “Table 15-2.”4 He also found 10 percent peripheral nerve impairment
(medial plantar nerve) under Table 16-12, A.M.A., Guides 536 (6th ed. 2008). Lastly,
Dr. Nwaneri found seven percent impairment for loss of range of motion (ROM) under Table 1622, A.M.A., Guides 549 (6th ed. 2008). He explained that appellant had restricted motion on
eversion as well as dorsiflexion of the ankle. Dr. Nwaneri also noted that he reviewed an
August 18, 2011 left ankle x-ray, which showed some joint space narrowing.5
On June 16, 2012 Dr. Lawrence A. Manning, the district medical adviser (DMA)
reviewed Dr. Nwaneri’s impairment rating and recommended that OWCP refer appellant for
further evaluation. He noted several deficiencies in Dr. Nwaneri’s report, which included the
absence of ROM measurements and no description of his sensory examination. The DMA also
noted that Dr. Nwaneri impermissibly combined a diagnosis-based impairment with a standalone ROM impairment. Moreover, he indicated that Dr. Nwaneri did not combine the three
identified impairments utilizing the Combined Values Chart, but instead added them (25 + 10 +
7) to arrive at 42 percent.
OWCP subsequently referred appellant to Dr. Stuart J. Gordon, a Board-certified
orthopedic surgeon, for a second opinion. In a report dated September 27, 2012, Dr. Gordon
found one percent LLE impairment under Table 16-2, Foot and Ankle Regional Grid (LEI),
A.M.A., Guides 502 (6th ed. 2008). He indicated that appellant reached MMI in June 2010.
Dr. Gordon’s rating was based on a diagnosis of joint instability/ligamentous laxity -- traumatic.
He found class 1 impairment (CDX 1) for clinical instability, with a default (grade c) lower
extremity impairment of one percent. With respect to grade modifiers, Dr. Gordon assigned a
value of 1 for Functional History (GMFH 1), Physical Examination (GMPE 1) and Clinical
Studies (GMCS 1), which resulted in a net adjustment of zero (0).6 He further noted that there

3

Dr. Nwaneri performed appellant’s October 19, 2009 left ankle arthroscopy.

4

Table 15-2, Digit Regional Grid (Upper Extremity), A.M.A., Guides 391-94 (6th ed. 2008).

5

Dr. Craig A. Campbell, a Board-certified diagnostic radiologist, reviewed the August 18, 2011 x-ray and noted
no evidence of acute fracture, bone lesion, or dislocation. He further noted that the ankle mortise was intact and the
soft tissues were normal. Dr. Campbell’s diagnostic impression was no acute bony abnormality.
6

Net Adjustment (0) ꞊ (GMFH 1 - CDX 1) + (GMPE 1 - CDX 1) + (GMCS 1 – CDX 1). See Section 16.3d,
A.M.A, Guides 521 (6th ed. 2008).

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was no evidence of sensory or motor deficit, no evidence of loss of motion and no evidence of
joint space narrowing apart from Dr. Nwaneri’s finding.
The DMA reviewed the record on October 20, 2012 and concurred with Dr. Gordon’s
one percent LLE impairment rating. According to him, appellant reached MMI on October 19,
2010; one year from the date of her left ankle surgery.
On November 20, 2012 OWCP granted a schedule award for one percent LLE extremity
impairment.
The award covered a period of 2.88 weeks from October 19 through
November 8, 2010.
Appellant timely requested an oral hearing. She also submitted a January 23, 2013
impairment rating from Dr. Stuart J. Goodman, a Board-certified neurologist. He noted that
appellant received an award for one percent LLE impairment, but Dr. Goodman believed she had
at least three percent impairment. He stated that appellant “falls into [c]lass 1 with a three
percent” impairment of her LLE under Table 16-2, Foot and Ankle Regional Grid (LEI),
A.M.A., Guides 501-08 (6th ed. 2008). Dr. Goodman did not complain of her foot going to sleep,
numbness, difficulty wearing closed shoes, sitting or standing for a prolonged period of time.
By decision dated June 3, 2013, the hearing representative remanded the case to OWCP
so that it could refer Dr. Goodman’s January 23, 2013 report to the DMA for review.
In a June 22, 2013 report, Dr. Manning, the DMA, found one percent LLE impairment.
He indicated that there was no evidence in Dr. Goodman’s report that warranted any further
impairment above one percent, as previously advised.
In a July 10, 2013 decision, OWCP found that appellant had not established entitlement
to additional LLE impairment. It based its decision on the DMA’s June 22, 2013 finding of no
impairment in excess of the previous one percent LLE award.
Counsel requested another oral hearing, which was held on December 18, 2013.
In a February 27, 2014 decision, the hearing representative affirmed OWCP’s July 10,
2013 decision.
LEGAL PRECEDENT
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.7 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 use of uniform standards applicable to all claimants. The
implementing regulations have adopted the American Medical Association, Guides to the
Evaluation of Permanent Impairment as the appropriate standard for evaluating schedule losses.8
7

For complete loss of use of a leg, an employee shall receive 288 weeks’ compensation. 5 U.S.C. § 8107(c)(2).

8

20 C.F.R. § 10.404.

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Effective May 1, 2009, schedule awards are determined in accordance with the sixth edition of
the A.M.A., Guides (2008).9
ANALYSIS
Appellant’s surgeon, Dr. Nwaneri, provided an August 18, 2011 impairment rating that
included numerous errors with respect to the application of the A.M.A., Guides (6th ed. 2008).
First, he purportedly found a diagnosis-based impairment of 25 percent LLE under “Table 15-2.”
However, the identified table pertains to upper extremity digit impairments.10 Assuming
Dr. Nwaneri intended to cite Table 16-2, Foot and Ankle Regional Grid (LEI), A.M.A., Guides
501-08 (6th ed. 2008) rather than “Table 15-2,” he still neglected to identify the specific
diagnosis and/or diagnostic criteria he relied on in finding 25 percent LLE impairment.
Dr. Nwaneri also found impairment due to loss of ankle range of motion under Table 16-22,
A.M.A., Guides 549 (6th ed. 2008), but failed to provide ROM measurements to support his
seven percent LLE impairment rating. Dr. Nwaneri’s 10 percent rating for peripheral nerve
impairment (medial plantar nerve) under Table 16-12, A.M.A., Guides 536 (6th ed. 2008) is
similarly deficient because he failed to document specific results of sensory testing. Dr. Nwaneri
merely noted that there was “sensory deficit” in the region of the medial arch and great toe.
Because of the above-noted deficiencies as identified by the DMA, OWCP referred appellant to
Dr. Gordon for further evaluation.
Based on his September 27, 2012 physical examination, the second opinion physician,
Dr. Gordon, found no evidence of sensory or motor deficits and no evidence of loss of motion.
He rated appellant for joint instability/ligamentous laxity -- traumatic under Table 16-2, Foot and
Ankle Regional Grid (LEI), A.M.A., Guides 502 (6th ed. 2008). Dr. Gordon identified class 1
impairment for clinical instability. The default lower extremity rating for clinical instability is
one percent. Factoring in adjustments for Functional History (GMFH 1), Physical Examination
(GMPE 1) and Clinical Studies (GMCS 1), Dr. Gordon calculated a net adjustment of 0, which
resulted in no deviation from the default (grade c) rating of 1 percent.11 The DMA concurred
with Dr. Gordon’s LLE impairment rating.
The Board finds that Dr. Gordon’s September 27, 2012 impairment rating properly
conforms to the A.M.A., Guides (6th ed. 2008), and thus, represent the weight of the medical
evidence regarding the extent of appellant’s left lower extremity impairment. Although
Dr. Goodman subsequently found “at least a three percent” impairment under Table 16-2, Foot
and Ankle Regional Grid (LEI), A.M.A., Guides 502 (6th ed. 2008), he did not identify the
specific diagnosis and/or diagnostic criteria nor did he further explain his finds. The Board finds
that the medical evidence of record does not establish left lower extremity impairment in excess
of OWCP’s November 20, 2012 award of one percent.
9

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 & Permanent Disability
Claims, Chapter 2.808.6a (February 2013).
10

See supra note 4.

11

See supra note 6.

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CONCLUSION
Appellant has not demonstrated that she has greater than one percent impairment of the
LLE.
ORDER
IT IS HEREBY ORDERED THAT the February 27, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 5, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Little Rock, AR, Employer
__________________________________________

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

Docket No. 11-1975
Issued: April 4, 2012

Case Submitted on the Record

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

JURISDICTION
On August 25, 2011 appellant filed a timely appeal from a June 15, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish that his left biceps
tendon tear was causally related to the October 19, 2010 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the June 15, 2011 decision. Since the
Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the Board
may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 ECAB
126 (2005). Appellant may submit that evidence to OWCP along with a request for reconsideration.

FACTUAL HISTORY
On December 13, 2010 appellant, then a 62-year-old sales and services clerk, filed a
traumatic injury claim alleging that on October 19, 2010 he strained his left lower arm when he
moved a heavy manual ramp out of the way in order to move mail across the dock.
In a November 18, 2010 report, Dr. Jason McConnell, an orthopedic surgeon, noted
appellant’s complaints of left arm and shoulder pain. He related that he began to experience pain
and some swelling in the left elbow about four to five weeks ago when he moved some metal
along a ramp. Dr. McConnell observed full range of motion of appellant’s elbow but some
swelling in the antecubital fossa. Flexion and extension of appellant’s wrist and feet were not
painful. Examination of the left shoulder revealed some pain and positive impingement signs.
X-rays of the left shoulder and cervical spine did not show any signs of arthritis, fractures or
dislocations. Dr. McConnell diagnosed left biceps strain with impingement to the left shoulder.
He recommended a magnetic resonance imaging (MRI) scan examination because he suspected a
partial biceps tendon tear.
In a December 2, 2010 report, Dr. McConnell noted appellant’s complaints of left elbow
and shoulder pain. He first examined appellant on November 18, 2010 for shoulder pain and
noted resisted supination down in the elbow consistent with a partial biceps tendon rupture.
Examination of the upper extremity revealed significant pain with resisted supination.
Dr. McConnell diagnosed left biceps strain with impingement of the left shoulder.
In a December 3, 2010 MRI scan report, Dr. Bryan Jennings, a Board-certified diagnostic
radiologist, noted appellant’s complaints of left elbow pain. He observed normal marrow signal,
appropriate osseous alignment, intact radial and ulnar collateral ligaments and intact triceps
tendon. No abnormal signal or joint effusion was present. Dr. Jennings noted a high-grade
partial thickness tear of the biceps tendon with a slip of tendon tissue remaining attached to the
radius. The remainder of tendons and surrounding muscular was maintained with some edema
surrounding the biceps tendon sheath. Dr. Jennings diagnosed high-grade partial thickness tear
estimated at 80 to 90 percent of the tendon thickness involving the distal aspect of the tendon.
In a December 14, 2010 report, Dr. McConnell noted appellant’s complaints of left arm
pain and pointed out that a recent MRI scan revealed high-grade partial thickness tear.
Examination of appellant’s upper extremities showed no changes. Dr. McConnell diagnosed left
distal biceps rupture and recommended surgery. He also excused appellant from work until
December 16, 2010 and restricted him to light duty.
On December 20, 2010 Dr. McConnell requested authorization for surgery to repair a
torn biceps tendon.
On December 22, 2010 OWCP advised appellant that the evidence submitted was
insufficient to support his claim and requested additional information. It requested that he
answer specific questions and submit medical evidence providing a diagnosis of any condition
resulting from the October 19, 2010 incident and a physician’s opinion regarding how the
incident caused or aggravated his alleged conditions.

2

On December 27, 2010 appellant responded to OWCP’s questionnaire. He explained that
he waited until December 13, 2010 to file his traumatic injury claim because he thought his
condition was getting better until it was reinjured due to its weakened condition. Appellant
stated that he felt a snap in his forearm and experienced pain.
In a January 4, 2011 statement, appellant stated that after he injured his arm he went to
Dr. William Highsmith, Board-certified in family medicine, because he experienced problems
with his neck. He underwent physical therapy for five to six weeks but he noted that his arm still
bothered him and felt weak when he lifted something. Appellant related that one day he was
cleaning his kitchen when he lifted a cast iron skillet and felt another pull in his arm. He went
back to Dr. Highsmith and was referred to Dr. McConnell, who recommended an MRI scan and
suggested that appellant undergo surgery.
In a decision dated February 3, 2011, OWCP accepted that the October 19, 2010 incident
occurred as alleged and that appellant sustained a left arm condition, but denied his claim finding
the medical evidence insufficient to establish that his left arm condition was causally related to
the accepted event.
On February 14, 2011 appellant requested a review of the written record. He stated that
he included a letter from Dr. Highsmith in support of his claim. Appellant also clarified that the
injury was to his forearm, not his back and that the tear was on the inside bend of his elbow area
or forearm. He explained that his doctor told him that one day he would pick something up and
it would finish tearing the tendon.
In a February 14, 2011 report, Dr. Highsmith stated that he examined appellant on
October 19, 2010 for an injury that occurred at work and again on November 10, 2010 for the
same injury.
Appellant submitted hospital outpatient records indicating that he was examined for left
elbow pain as a result of a partially torn tendon.
By decision dated June 15, 2011, OWCP’s hearing representative affirmed the
February 3, 2011 denial decision finding insufficient medical evidence establishing that
appellant’s left biceps tendon tear was causally related to the October 19, 2010 employment
incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his claim by the weight of the reliable, probative and substantial evidence3
including that he sustained an injury in the performance of duty and that any specific condition

3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

3

or disability for work for which he claims compensation is causally related to that employment
injury.4
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.5
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place and in the manner alleged.6 Second, the employee must submit evidence,
generally only in the form of probative medical evidence, to establish that the employment
incident caused a personal injury.7 An employee may establish that the employment incident
occurred as alleged but fail to show that his disability or condition relates to the employment
incident.8
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence providing a diagnosis or opinion as to
causal relationship.9 Rationalized medical opinion evidence is medical evidence which includes
a physician’s rationalized opinion on whether there is a causal relationship between the
employee’s diagnosed condition and the specified employment factors or incident.10 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 the
specific employment factors identified by the employee.11
ANALYSIS
OWCP has accepted that the October 19, 2010 employment incident occurred as alleged.
It denied appellant’s claim finding that he failed to provide rationalized medical opinion
evidence demonstrating that his left arm condition was causally related to the accepted
employment incident. The Board finds that the medical evidence fails to establish that he
sustained a left biceps tendon tear as a result of the October 19, 2010 employment incident.

4

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
5

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

6

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

7

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

8

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

9

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

10

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

11

D.S., Docket No. 09-860 (issued November 2, 2009); B.B., 59 ECAB 234 (2007); Victor J. Woodhams, supra
note 10.

4

Appellant submitted various medical reports by Dr. McConnell who noted appellant’s
complaints of left arm and shoulder pain after he moved some metal along a ramp. Examination
of the left upper extremity revealed pain and positive impingement signs. Dr. McConnell
recommended an MRI scan examination, which revealed high-grade partial thickness tear. He
diagnosed left distal biceps rupture and recommended surgery. Dr. McConnell did not, however,
offer any opinion regarding the cause of appellant’s left arm condition. The Board has found
that medical evidence that does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value and is insufficient to establish appellant’s claim.12 The
additional medical reports of Drs. Highsmith and Jennings’ reports are likewise insufficient to
establish appellant’s claim as they do not contain any opinion on the cause of his left arm
condition or an explanation on how the October 19, 2010 incident caused his left biceps tendon
tear.
On appeal, appellant contends that his arm injury was because of a weakened condition
from a prior injury at work and related why he did not file his claim right away. Causal
relationship is a medical issue and the medical evidence generally required to establish causal
relationship is rationalized medical opinion evidence.13 As appellant has not submitted such
rationalized medical opinion evidence in this case, he did not meet his burden of proof 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.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his left
biceps tendon tear was causally related to the October 19, 2010 employment incident.

12

R.E., Docket No. 10-679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007).

13

I.R., Docket No. 09-1229 (issued February 24, 2010); W.D., Docket No. 09-658 (issued October 22, 2009);
D.I., 59 ECAB 158 (2007).

5

ORDER
IT IS HEREBY ORDERED THAT the June 15, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 4, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 21-0033
Issued: May 18, 2021

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 October 5, 2020 appellant filed a timely appeal from a September 23, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish a left hip condition
causally related to the accepted factors of his federal employment.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the September 23, 2020 decision, OWCP received additional evidence. The
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

FACTUAL HISTORY
On June 4, 2020 appellant, then a 65-year-old rural delivery specialist, filed an
occupational disease claim (Form CA-2) alleging that he developed a left groin hernia as a result
factors of his federal employment, including repetitive lifting of heavy parcels. He noted that he
first became aware of his condition and realized its relationship to his federal employment on
March 26, 2020. Appellant did not stop work.
In a visit note dated June 5, 2020, Dr. Timothy Bergan, a family medicine specialist,
diagnosed a left hip strain. He opined that the condition was work related and that appellant could
return to work without restrictions, effective immediately.
In a July 6, 2020 development letter, OWCP informed appellant of the deficiencies of his
claim. It advised him of the factual and medical evidence necessary to establish his claim and also
provided a questionnaire for completion. OWCP afforded appellant 30 days to respond.
Appellant indicated, in a July 14, 2020 response to OWCP’s development questionnaire,
that his work duties included lifting 225 to 325 parcels of varying shapes and sizes, weighing up
to 70 pounds each, on a daily basis. He indicated that he developed groin pain while lifting a
parcel on March 26, 2020 and that he lifted parcels approximately one to two hours total per day,
especially for the past several years when the volume of parcels had skyrocketed. Appellant
described the groin pain as constant, and indicated that it would increase throughout the day as he
lifted parcels. He denied any prior similar injuries or engaging in any activities outside of work,
which would cause his symptoms.
In a July 15, 2020 visit note, Dr. Bergan again diagnosed left hip strain and opined that the
injury was work related and released appellant from care.
By decision dated September 23, 2020, OWCP denied appellant’s claim, finding that the
medical evidence of record was insufficient to establish that the left hip condition was causally
related to the accepted factors of his federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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,4 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

3

Supra note 1.

4
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).

2

employment injury.5 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.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.8 The opinion of the physician must be based upon a complete factual
and medical background, 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 incident.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a left hip
condition causally related to the accepted factors of his federal employment.
In his notes dated June 5 and July 15, 2020, Dr. Bergan diagnosed a left hip strain and
opined that “this injury is determined to be work related.” However, his notes do not contain a
history regarding any mechanism of injury, and he did not explain a pathophysiological process of
how any of appellant’s work duties contributed to his left hip strain.10 The Board has held that a
medical opinion should reflect a correct history and offer a medically-sound and rationalized
explanation by the physician of how the specific employment duties physiologically caused or
aggravated the diagnosed conditions.11 As noted above, medical evidence which does not explain
the nature of the relationship between the diagnosed condition and the specific employment factors
is insufficient to meet the claimant’s burden of proof.12
5

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).
6
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).
7

P.L., Docket No. 19-1750 (issued March 26, 2020); R.G., Docket No. 19-0233 (issued July 16, 2019); L.M.,
Docket No. 13-1402 (issued February 7, 2014); Dolores C. Ellyett, id.
8

I.J., Docket No. 19-1343 (issued February 26, 2020); T.H., 59 ECAB 388 (2008); Robert G. Morris, 48 ECAB
238 (1996).
9

D.C., Docket No. 19-1093 (issued June 25, 2020); see L.B., Docket No. 18-0533 (issued August 27, 2018).

10
J.D., Docket No. 19-1953 (issued January 11, 2021); J.C., Docket No. 18-1474 (issued March 20, 2019); M.M.,
Docket No. 15-0607 (issued May 15, 2015); M.W., Docket No. 14-1664 (issued December 5, 2014).
11

See J.M., Docket No. 17-1002 (issued August 22, 2017).

12

See supra note 9.

3

Therefore, the Board finds that Dr. Bergan’s reports are insufficient to establish appellant’s
burden of proof.
As appellant has not submitted rationalized medical evidence to establish a left hip
condition causally related to the accepted factors of his federal employment, the Board finds that
he has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a left hip
condition causally related to the accepted factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the September 23, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 18, 2021
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.Y., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION
MEDICAL CENTER, Los Angeles, CA,
Employer
__________________________________________

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

Docket No. 11-1529
Issued: February 2, 2012

Case Submitted on the Record

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

JURISDICTION
On June 14, 2011 appellant filed a timely appeal from a March 3, 2011 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
December 15, 2010.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the March 3, 2011 merit decision.
Since the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision,
the Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57
ECAB 126 (2005). Appellant may submit that evidence to OWCP along with a request for reconsideration.

FACTUAL HISTORY
On January 13, 2011 appellant, then a 78-year-old social service representative, filed a
traumatic injury claim alleging that on December 15, 2010 at 9:30 a.m. she suffered a ministroke at work. She stopped work on December 16, 2010. The employing establishment
controverted appellant’s claim alleging that her medical condition was not caused by a traumatic
injury and that no medical evidence supported a work-related injury.
On January 27, 2011 OWCP advised appellant that she had not submitted sufficient
evidence to support her claim and requested additional evidence. It requested a more detailed
description of the alleged December 15, 2010 incident and a medical report from her treating
physician explaining how her medical condition was caused or aggravated by the claimed injury.
In a December 14, 2010 echocardiography report, Dr. Bruce Macrum, a Board-certified
internist, noted appellant’s complaints of chest pain. The examination revealed normal left and
right ventricular cavity size, systolic function, tricuspid valve and inferior vena cava.
Dr. Macrum concluded that appellant had normal ventricular size and contractility with no left
ventricular wall motion abnormalities or hemodynamically significant valvular pathology.
In a December 20, 2010 magnetic resonance imaging (MRI) scan report, Dr. Eli J.
Bendavid, a Board-certified diagnostic radiologist, noted a history of abnormal balancing and
hypertension. No additional infarct, hemorrhage, mass, hydrocephalus, extra-avial fluid
collections or midline shift were noted. Dr. Bendavid diagnosed acute to subacute right parietal
lobe infarct and generalized atrophy and deep white ischemic change.
In a December 20, 2010 carotid ultrasound report, Dr. Mark R. Rockoff, a Board-certified
diagnostic radiologist, observed minimal plaquing identified within the right internal carotid
artery with normal peak systolic velocities, consistent with between 0 and 15 percent diameter
stenosis. He noted mild to moderate calcified plaquing seen within the internal carotid artery
with normal peak systolic velocies consistent with between 16 and 30 percent diameter stenosis.
Dr. Rockoff did not find a hemodynamically significant lesion.
In a December 20, 2010 computerized tomography scan of the brain, Dr. Rockoff noted
atherosclerotic calcification and generalized cerebral atrophy. He did not find any evidence of
fracture or destructive process or abnormal collections of blood or calcifications. Dr. Rockoff
diagnosed atrophy and microvascular disease.
In a January 20, 2011 request for leave under the Family and Medical Leave Act,
Dr. Phillip S. Bland, an internist, indicated that he treated appellant weekly and referred her to
other health care providers for treatment and evaluation. Appellant’s request for leave was
approved on February 1, 2011.
In a February 8, 2011 handwritten statement, appellant explained that on December 15,
2010 it took her a long time to accomplish her normal work tasks and she became more
frustrated as the day progressed. Some staff workers noticed that she was not herself and was
driving erratically. Appellant described her workday as consisting of answering telephone calls,
making sure the staff was prepared to work with veterans, managing a fleet of cars and working

2

with a team of 15 outreach workers. She believed being “overstressed was a continuing factor to
my stroke.”
In a decision dated March 3, 2011, OWCP denied appellant’s claim on the grounds of
insufficient factual evidence that any December 15, 2010 work event occurred in a specific time,
place and in the alleged manner and insufficient medical evidence establishing that she sustained
a diagnosed condition causally related to the alleged incident. It advised her that her claim may
be characterized as an occupational disease claim as she attributed her condition to overstress at
work over a period of time.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of her claim by the weight of the reliable, probative and substantial evidence3
including that she sustained an injury in the performance of duty and that any specific condition
or disability for work for which she claims compensation is causally related to that employment
injury.4 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.5
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place and in the manner alleged.6 Second, the employee must submit evidence,
generally only in the form of probative medical evidence, to establish that the employment
incident caused a personal injury.7
When an employee claims that she sustained a traumatic injury in the performance of
duty, she must submit sufficient evidence to establish that she experienced a specific event,
incident or exposure at the time, place and in the manner alleged.8 Once an employee establishes
that she sustained an injury in the performance of duty, she has the burden of proof to establish
that any subsequent medical condition or disability for work, for which she claims compensation,
is causally related to the accepted injury.9

3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

4

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989); M.M., Docket No. 08-1510 (issued
November 25, 2010).
5

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

6

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

7

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

8

See 20 C.F.R. § 10.55(ee) (traumatic injury is defined as a condition of the body caused by a specific event or
incident, or series of events or incidents, within a single workday or shift. Such condition must be caused by
external force, including stress or strain, which is identifiable as to time and place of occurrence and member or
function of the body affected).
9

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

3

ANALYSIS
Appellant alleged that on December 15, 2010 she sustained a mini-stroke. As part of her
burden of proof, she must establish all the elements of her claim, including that she experienced
a December 15, 2010 incident at the time, place and in the manner alleged. OWCP denied
appellant’s claim finding that she did not provide sufficient details attributing a specific incident
to her medical condition. The Board finds that she failed to establish that she sustained an injury
in the performance of duty on December 15, 2010.
Appellant did not sufficiently describe that a specific incident or event on December 15,
2010 occurred and caused her alleged conditions. She alleged that she felt disoriented when she
prepared to leave her job the day before and that it took her a long time to accomplish her usual
work tasks. Appellant described her workday as consisting of answering telephone calls, making
sure the staff was prepared to work with veterans, managing a fleet of cars and working with a
team of 15 outreach workers. She failed to adequately describe the circumstances of her injury.
While she did provide a description of her work activities on the day in question, appellant did
not explain which activity actually caused her to sustain a stroke during her work shift.10 In a
letter dated January 27, 2011, OWCP advised her of the deficiencies of her claim and requested
additional factual evidence describing the specific incident or incidents that occurred on
December 15, 2010. Appellant did not submit sufficient factual evidence to establish that any
incident occurred on December 15, 2010 at the time, place and in the manner alleged.
The medical evidence of record also fails to establish that appellant sustained any injury
on December 15, 2010. Appellant submitted various diagnostic reports dated December 14 to
20, 2010. None of the reports, however, provide a diagnosis of her medical conditions or
explain, with medical rationale, how a December 15, 2010 incident may have caused any
conditions.
The standard of proof remains unchanged. Appellant must still show by factual and
medical evidence a connection between some factor of her employment and her claimed medical
condition.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an injury in the performance of duty on December 15, 2010.

10

See H.G., Docket No. 10-2125 (issued May 18, 2011); A.D., Docket No. 08-1603 (issued December 5, 2008).

4

ORDER
IT IS HEREBY ORDERED THAT the March 3, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 2, 2012
Washington, DC

Alec J. Koromilas, 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
__________________________________________
R.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, FEDERAL AIR
MARSHALS SERVICE, Chicago, IL, Employer
__________________________________________

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Appearances:
Lawrence Berger, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-428
Issued: September 27, 2011

Case Submitted on the Record

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

JURISDICTION
On December 7, 2010 appellant filed a timely appeal from a June 16, 2010 decision of
the Office of Workers’ Compensation Programs (OWCP) that found that he received an
overpayment of compensation. Pursuant to the Federal Employees’ Compensation Act (FECA)1
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant received an overpayment in compensation in the
amount of $18,315.33 because he concurrently received Office of Personnel Management
(OPM) retirement benefits while receiving FECA benefits for the period April 10, 2006 through
January 6, 2007; and (2) whether OWCP properly denied waiver of the overpayment.

1

5 U.S.C. §§ 8101-8193.

On appeal, counsel asserts that appellant was entitled to receive both retirement and
FECA benefits and that recovery of the overpayment would defeat the purpose of FECA and be
against equity and good conscience because it would cause extreme financial hardship.
FACTUAL HISTORY
On February 2, 2006 appellant, then a 55-year-old supervisory air marshal, filed a
traumatic injury claim, alleging that he injured his right shoulder while doing pushups. The
claim was accepted for right shoulder rotator cuff sprain/strain and right rotator cuff tear.2 On
March 15, 2006 appellant underwent acromioplasty and rotator cuff repair. He received
appropriate continuation of pay and compensation and returned to modified duty on
May 15, 2006. Appellant continued to receive intermittent compensation for medical and
therapy appointments.
In July 2007 appellant inquired about entitlement to a schedule award and submitted an
August 24, 2007 impairment evaluation from his attending physician Dr. Upendra Patel, a
Board-certified orthopedic surgeon.
On January 5, 2008 appellant informed OWCP that when he began employment with the
employing establishment on November 4, 2002 he received an offset waiver as a condition of
employment. He noted that he previously worked for the Department of Justice for 28 years as a
United States marshal. Appellant indicated that he was hired by the employing establishment for
a five-year appointment, and stated that an offset was provided such that there would be no offset
of his retirement annuity through civil service. He noted that his five-year contract ended on
November 2, 2007.
By letter dated September 16, 2008, OWCP advised appellant that since he was receiving
FECA benefits and was also receiving an OPM annuity, this would be considered a dual benefit.
It informed him that he would have to elect to receive either FECA or OPM benefits and
provided an election form. Appellant provided a November 1, 2002 letter regarding the hiring of
federal air marshals. The letter stated that the appointment was not to exceed five years from the
date of appointment and referenced an offset waiver process found in 5 C.F.R. § 553.203.3 A
notification of personnel action, effective November 3, 2002, noted that appellant was hired as a
reemployed annuitant in an excepted position.

2

The record does not contain an explanation of the circumstances of the injury or development as to whether the
injury was sustained in the performance of duty.
3

The letter does not appear to be addressed to appellant as it references a special agent in charge.

2

On April 9, 2009 OWCP informed appellant that section 553.203 did not apply to
payments under FECA, noting that there was no offset waiver provision under FECA allowing
payment of dual benefits for wage-loss compensation and an OPM retirement annuity. Appellant
was again sent an election form.4
On November 19, 2009 appellant was granted a schedule award for a seven percent loss
of use of the right upper extremity, for 21.84 weeks, to run from March 1 to June 8, 2007.5 On
December 3, 2009 OWCP issued a preliminary finding that an $18,315.33 overpayment of
compensation had been created for the period April 10, 2006 through January 6, 2007. It
explained that the overpayment occurred because appellant received FECA benefits and OPM
retirement benefits during this period. Appellant was found not at fault and was provided an
overpayment action request and overpayment questionnaire. The record contains computer
printouts showing that for the period April 10, 2006 through January 6, 2007, he received gross
FECA wage-loss compensation totaling $18,315.33.
On January 2, 2010 appellant requested a hearing that was scheduled for 1:45 p.m. on
March 29, 2010. He did not appear at the scheduled hearing. On March 29, 2010 OWCP’s
hearing representative notified counsel that he would proceed with a review of the written record
and asked that counsel submit any additional information on the issues of fact, amount and
waiver of the overpayment. OWCP’s hearing representative advised that an overpayment
questionnaire was required to determine waiver.
By decision dated June 16, 2010, OWCP’s hearing representative finalized the
preliminary overpayment decision, finding that appellant received an overpayment in
compensation in the amount of $18,315.33 and, while he was not at fault, he was not entitled to
waiver of the overpayment because he failed to supply the requested overpayment questionnaire.
Appellant was ordered to repay the overpayment in full.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.6 Section 8116(a) states that while an employee is receiving workers’
compensation benefits, he or she may not receive salary, pay, or remuneration of any type from
the United States, except in return for services actually performed or for certain payments related
to service in the Armed Forces, including benefits administered by the Department of Veterans
4

Appellant submitted an election form, dated September 21, 2009, in which he elected FECA benefits. He did
not provide an election date, and by letter dated October 19, 2009, OWCP asked that he clarify if he was choosing
FECA benefits for the period April 10, 2006 to January 6, 2007 and informed him that he should provide an
effective date. Appellant provided a second election form stating that he elected civil service retirement benefits for
the period April 10, 2006 to January 6, 2007.
5

By decision dated January 20, 2010, OWCP’s hearing representative denied appellant’s hearing request of the
schedule award decision as untimely. On January 7, 2011 appellant requested reconsideration of the schedule award
decision.
6

5 U.S.C. § 8102(a).

3

Affairs, unless such benefits are payable for the same injury or the same death being
compensated for under FECA.7 Section 10.421(a) of OWCP’s implementing regulations provide
that a beneficiary may not receive wage-loss compensation concurrently with a federal
retirement or survivor annuity.8 The beneficiary must elect the benefit that he or she wishes to
receive.9
ANALYSIS -- ISSUE 1
The record supports that appellant received both wage-loss compensation under FECA
and OPM retirement benefits for the period April 10, 2006 through January 6, 2007. As a
beneficiary may not receive wage-loss compensation concurrently with a federal retirement or
survivor annuity,10 an overpayment in compensation was created.11 At the time appellant was
hired by the employing establishment, he was already a federal annuitant, and his salary as a
federal air marshal was not offset by his retirement annuity under an exception provided by
section 555.203 of federal regulations.12 This, however, does not constitute offset under FECA.
The clear language of section 8116(a) of FECA and section 10.421(a) of OWCP’s implementing
regulations prohibits the receipt of FECA wage-loss benefits and a federal annuity.13
As appellant received $18,315.33 in FECA benefits while concurrently receiving OPM
retirement benefits, an overpayment of compensation in that amount was created.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”14 Section 10.438 of OWCP regulations provide that the individual who
received the overpayment is responsible for providing information about income, expenses and
assets as specified by OWCP. This information is needed to determine whether or not recovery
on an overpayment would defeat the purpose of FECA or be against equity and good
7

Id. at § 8116(a).

8

20 C.F.R. § 10.421(a).

9

Id.

10

Id.

11

See Franklin L. Bryan, 56 ECAB 310 (2005).

12

5 C.F.R. § 553.203(a), reemployed civilian annuitants, provides: Annuitants reemployed with full salary and
annuity under an exception granted in accordance with this part are not considered employees for purposes of
subchapter 3 of chapter 83 or chapter 84 of title 5, United States Code. They may not elect to have retirement
contributions withheld from their pay; they may not use any employment for which an exception is granted as a
basis for a supplemental or recomputed annuity; and they may not participate in the Thrift Savings Plan.
13

5 U.S.C. § 8116(a); supra note 8.

14

Id. at § 8129.

4

conscience.15 Failure to submit the requested information within 30 days of the request shall
result in denial of waiver.16
ANALYSIS -- ISSUE 2
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience.17 Appellant,
however, had the responsibility to provide financial information to OWCP18 and did not do so.
In its preliminary determination dated December 3, 2009, OWCP clearly explained the
importance of providing the requested financial information and advised appellant that it would
deny waiver if he failed to furnish the requested financial information within 30 days. Moreover,
on March 29, 2010, OWCP’s hearing representative informed counsel of the importance of
submitted the overpayment questionnaire for determining waiver. Appellant did not submit a
completed overpayment questionnaire or otherwise submit financial information supporting his
income and expenses at any time prior to the June 6, 2010 decision over which the Board has
jurisdiction.19 Thus, contrary to his argument on appeal, OWCP did not have the necessary
financial information to determine if recovery of the overpayment would defeat the purpose of
FECA or if recovery would be against equity and good conscience as it would cause a financial
burden. Consequently, as appellant did not submit the financial information required under
section 10.438 of OWCP’s regulations, which was necessary to determine his eligibility for
waiver, OWCP properly denied waiver of recovery of the overpayment in the amount of
$18,315.33.20

15

Recovery of an overpayment will defeat the purpose of FECA if such recovery would cause hardship to a
currently or formerly entitled beneficiary because: (a) the beneficiary from whom OWCP seeks recovery needs
substantially all of his or her current income (including compensation benefits) to meet current or ordinary and
necessary living expenses; and (b) the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data furnished by the Bureau of Labor Statistics. 20 C.F.R. § 10.436. Recovery of an overpayment is
considered to be against equity and good conscience when an individual who received an overpayment would
experience severe financial hardship attempting to repay the debt; and when an individual, in reliance on such
payments or on notice that such payments would be made, gives up a valuable right or changes his or her position
for the worse. Id. at § 10.437.
16

20 C.F.R. § 10.438.

17

Supra note 15.

18

Supra note 16.

19

The Board’s jurisdiction to consider and decide appeals from final decisions of OWCP extends only to those
final decisions issued within 180 days prior to the filing of the appeal. 20 C.F.R. § 501.3(e).
20

Supra note 16.

5

With respect to recovery of the overpayment, the Board’s jurisdiction is limited to
reviewing those cases where OWCP seeks recovery from continuing compensation benefits
under FECA.21 As appellant is no longer receiving wage-loss compensation, the Board does not
have jurisdiction with respect to the recovery of the overpayment under the Debt Collection
Act.22
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $18,315.33 and that OWCP properly denied waiver of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the June 16, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 27, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

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

21

Cheryl Thomas, 55 ECAB 610 (2004).

22

Id. The Board notes that appellant submitted financial information with his appeal to the Board. The Board
cannot consider this, however, as its review of the case is limited to the evidence of record that was before OWCP at
the time it rendered its final decision. 20 C.F.R. § 501.2(c)(1); J.T., 59 ECAB 293 (2008).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.Y., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SALT LAKE CITY HCS, Salt Lake City, UT,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 18-0263
Issued: September 14, 2018

Case Submitted on the Record

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

JURISDICTION
On November 20, 2017 appellant filed a timely appeal from an October 16, 2017 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 the case.2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant abandoned his
request for a prerecoupment hearing before an OWCP hearing representative; (2) whether OWCP
properly determined that appellant received an overpayment of compensation in the amount of
$10,985.00 for the period September 18, 2016 through February 4, 2017; and (3) whether OWCP
1
2

5 U.S.C. § 8101 et seq.

The record provided to the Board includes evidence received after OWCP issued its October 16, 2017 decision.
The Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision. Therefore,
the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

properly determined that appellant was at fault in the creation of the overpayment, thereby
precluding waiver of recovery of the overpayment.
FACTUAL HISTORY
On May 12, 2011 appellant, then a 37-year-old carpenter, filed a traumatic injury claim
(Form CA-1) alleging that, on May 10, 2011, he twisted his back and experienced right leg pain
while unloading a metal pipe from a truck in the performance of duty. He returned to modifiedduty work. OWCP subsequently accepted the claim for bulging disc at L4-5. Appellant stopped
work on May 1, 2013 and underwent an OWCP authorized L4-S1 spinal fusion with posterior
decompression and posterior arthrodesis. He did not return to work. OWCP subsequently
expanded acceptance of the claim to include lumbosacral radiculitis, L4-5 and L5-S1.
In a letter dated October 21, 2013, OWCP notified appellant that he would be receiving
compensation payments on the periodic compensation rolls as of October 21, 2013. It advised him
of his responsibility to return to work in connection with the accepted employment injury. To
minimize the possibility of an overpayment of compensation, OWCP instructed appellant to notify
it immediately when he returned to work. OWCP calculated appellant’s weekly pay rate at the 75
percent augmented rate, to be $765.37. For payments sent by electronic funds transfer (EFT), a
notification of the date and amount of payment appeared on the statement from his financial
institution. Appellant was expected to monitor his EFT deposits carefully, at least every two
weeks. If he worked for any portion of the period for which a deposit was made, he was to advise
OWCP immediately so that the overpayment could be collected. OWCP noted that appellant’s
first regular payment would be for the period November 17 to December 14, 2013 in the net
amount of $2,296.11.3
Following a period of vocational rehabilitation services, appellant returned to work in the
private sector on September 18, 2016.
By decision dated February 14, 2017, OWCP noted that, effective September 18, 2016,
appellant returned to work in the private sector employed as a 3D Modeler/Steel Retailer (Drafter)
working full-time (40 hours per week) with wages of $750.38 per week. It determined that the
position fairly and reasonably represented his wage-earning capacity and reduced his monetary
compensation benefits, effective September 18, 2016, based on his actual earnings. Using the
Shadrick formula, as provided in section 10.403(d) of OWCP’s regulations,4 OWCP found that

3
Appellant was paid a net amount of $2,214.11 for the period October 21 to November 16, 2013. Thereafter, he
received regular compensation payments every 28 days in the net amount of $2,296.11. As appellant’s term at the
employing establishment had ended, he was not eligible for benefits and the employing establishment was unable to
accommodate him.
4

20 C.F.R. § 10.403 codified Albert C. Shadrick, 5 ECAB 376 (1953).

2

appellant’s net compensation entitlement every 28 days was $116.81.5 Appellant received wageloss benefits based upon his new loss of wage-earning capacity as of February 5, 2017.
By letter dated April 20, 2017, OWCP advised appellant of its preliminary determination
that an overpayment of compensation in the amount of $10,985.00 had been created during the
period September 18, 2016 through February 4, 2017, as he was paid temporary total wage-loss
compensation after his return to work in the private sector on September 18, 2016. It found that
he was at fault in the creation of the overpayment as he knew or should have known that he was
not entitled to receive wage-loss compensation for temporary total disability after returning to
work. OWCP informed appellant that he had a right to a prerecoupment hearing before an OWCP
hearing representative. Appellant was also advised to complete the enclosed overpayment
recovery questionnaire (Form OWCP-20), and submit supporting financial documentation, as this
was necessary information on the issues of waiver and recovery of the overpayment.
OWCP calculated the total amount of overpayment as follows: It found that appellant
received $2,312.00 in wage-loss compensation for each periodic rolls payment cycle of 28 days.
As there were five periodic rolls payment cycles during the period September 28, 2016 through
February 4, 2017, appellant was paid $11,560.00 ($2,312.00 times 5). Appellant’s weekly pay
rate when injured was $765.37 and, based on his new position, he was capable of earning $727.10
weekly. This weekly difference amounted to $38.27 ($765.37 - $727.10). As appellant received
augmented compensation based on eligible dependents, the weekly compensation rate was $28.70
($38.27 times 75 percent). Thus, the amount owed appellant in a single periodic rolls payment
cycle was $114.80 ($28.70 divided by 7 days times 28 days). Additionally, during the period
September 18, 2016 through February 4, 2017, OWCP noted that the Consumer Price Index
adjusted the 28-day compensation rate from $114.80 to $115.00. Thus, for the period
September 18, 2016 through February 4, 2017, appellant was due $575.00 ($115.00 times five
periodic roll payment cycles). OWCP subtracted the wage-loss compensation due of $575.00 from
the $11,560.00 wage-loss compensation paid, for a total overpayment amount of $10,985.00. A
Shadrick formula documentation memorandum and compensation payment history were provided
showing OWCP’s overpayment calculations.
On May 5, 2017 OWCP received appellant’s April 26, 2017 overpayment recovery
questionnaire (Form OWCP-20), which listed monthly income, monthly expenses, and additional
funds along with some supporting documentation. Appellant requested a prerecoupment hearing
on the issues of fault and possible waiver of recovery of the overpayment with OWCP’s Branch
of Hearings and Review. He disagreed that the overpayment had occurred, the amount of the
overpayment, and that he was at fault in the creation of the overpayment. Appellant indicated that
he had sent in CA-7 forms and pay stubs. He also stated that OWCP told him that he would receive
benefits for permanent disability for spinal fusion. On May 5, 2017 OWCP acknowledged receipt
of the hearing request.

5

It noted that, in his new position, appellant was earning $750.38 per week. On the date of injury, he was a
carpenter, employed under contract in a “Purchase and Hire” program, which no longer exists. As a result, the current
pay rate for this position was established at $789.89, effective September 18, 2016, by applying annual increases under
the General Schedule applicable in his region.

3

On July 10, 2017 OWCP received a change of address from appellant listing a Brigham
City, UT address.
In an August 9, 2017 letter, a representative of OWCP’s Branch of Hearings and Review
advised appellant that a telephonic hearing was scheduled for October 5, 2017 at 1:30 p.m. Eastern
Standard Time (EST).6 The hearing notice included a toll-free number and pass code to enable
access to the telephonic hearing. OWCP’s hearing representative advised appellant that
postponement of the hearing would be permitted only upon receipt showing that his nonelective
hospitalization or the death of a spouse, parent, or child prevented his attendance. It mailed the
hearing notice to appellant’s Brigham City, UT address.
Appellant did not call at the appointed time of the scheduled telephonic hearing, nor did
appellant contact OWCP’s Branch of Hearings and Review within the requisite 10 days thereafter.
By decision dated October 16, 2017, an OWCP hearing representative found that appellant
abandoned his request for a hearing which had been scheduled for October 5, 2017. The hearing
representative noted that appellant had been afforded notice 30 days prior to the scheduled hearing,
which he failed to attend. The hearing representative further noted that there was no indication
that appellant contacted the Branch of Hearings and Review either before or after the scheduled
hearing to explain his absence.
The hearing representative also finalized the preliminary overpayment determination that
an overpayment of compensation in the amount of $10,985.00 was created for the period
September 18, 2016 through February 4, 2017, for which appellant was with fault. Specifically,
the hearing representative found that he had accepted compensation payments he knew or
reasonably should have known he was not entitled. It requested that he repay the full amount of
$10,985.00 within 30 days.
LEGAL PRECEDENT -- ISSUE 1
A claimant dissatisfied with a decision on his or her claim is entitled, upon timely request,
to a hearing before an OWCP representative.7 Unless otherwise directed in writing by the
claimant, the hearing representative will mail a notice of the time, place, and method of the oral
hearing to the claimant and to any representative at least 30 days before the scheduled hearing
date.8
A hearing before OWCP’s Branch of Hearings and Review can be considered abandoned
only under very limited circumstances.9 With respect to abandonment of hearing requests, Chapter

6
As appellant resided in the Mountain Standard Time zone, OWCP advised him to make certain that his local time
was adjusted accordingly.
7

5 U.S.C. § 8124(b).

8

20 C.F.R. § 10.617(b).

9

Claudia J. Whitten, 52 ECAB 483 (2001).

4

2.1601(g) of OWCP’s procedures10 and section 10.622(f) of its regulations11 provide in relevant
part that failure of the claimant to appear at the scheduled hearing, failure to request a
postponement, and failure to request in writing within 10 days after the date set for the hearing that
another hearing be scheduled shall constitute abandonment of the request for a hearing. Under
these circumstances, the Branch of Hearings and Review will issue a formal decision finding that
the claimant has abandoned his or her request for a hearing and return the case to the district
office.12
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant abandoned his request for
a prerecoupment hearing.
OWCP’s Branch of Hearings and Review received appellant’s April 26, 2017 timely
request for an oral hearing which it acknowledged by letter dated May 5, 2017. By letter dated
August 9, 2017, the hearing representative provided appellant 30 days written notice of the
hearing, which was scheduled for October 5, 2017 at 1:30 p.m. EST. OWCP mailed the August 9,
2017 notice of hearing to appellant’s last known address, and it was not returned as undeliverable.
Absent evidence to the contrary, a notice mailed in the ordinary course of business is presumed to
have been received by the intended recipient.13 The presumption is commonly referred to as the
“mailbox rule.”14 It arises when the record reflects that the notice was properly addressed and duly
mailed.15 The current record is devoid of evidence to rebut the presumption that appellant received
the Branch of Hearings and Review’s August 9, 2017 notice of hearing.
The hearing notice was properly addressed to appellant’s last known address.16 Appellant
did not call-in as instructed for the October 5, 2017 scheduled telephonic hearing and there is no
indication that he requested postponement of same.17 Moreover, he did not submit a written
request within the 10 days after the date set for the hearing and request that another hearing be
scheduled. Under the circumstances, OWCP’s hearing representative properly found that
appellant abandoned his hearing request.18

10
Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the Written Record, Chapter
2.1601.6(g) (October 2011).
11

20 C.F.R. § 10.622(f).

12

Id.

13

Kenneth E. Harris, 54 ECAB 502, 505 (2003).

14

Id.

15

Id.

16

See K.F., Docket No. 17-1035 (issued August 24, 2017).

17

See 20 C.F.R. § 10.622(c).

18

See M.V., Docket No. 17-1795 (issued March 1, 2018).

5

LEGAL PRECEDENT -- ISSUE 2
Section 8102 of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.19
Section 8116 of FECA defines the limitations on the right to receive compensation benefits.
This section of FECA provides that, while an employee is receiving compensation, he or she may
not receive salary, pay or remuneration of any type from the United States, except in limited
circumstances.20 Section 10.500 of OWCP’s regulations provides that compensation for wage loss
due to disability is available only for any periods during which an employee’s work-related
medical condition prevents him or her from earning the wages earned before the work-related
injury.21
Section 8129(a) of FECA provides that when an overpayment of compensation has been
made to an individual because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which the individual is
entitled.22
If the claimant is entitled to compensation for partial wage loss after return to work, the
claims examiner should compute entitlement using the Shadrick formula and authorize
compensation on a 28-day payment cycle. The claims examiner should make every effort to avoid
interruption of income to the claimant.23 Earnings of a sporadic or intermittent nature which do
not fairly and reasonably represent the claimant’s loss of wage-earning capacity should be
deducted from continuing compensation payments using the Shadrick formula (past earnings must
be declared an overpayment).
ANALYSIS -- ISSUE 2
The Board finds that an overpayment of compensation was created in the amount of
$10,985.00 for the period September 18, 2016 through February 4, 2017, because appellant
continued to receive temporary total disability compensation after he returned to work in the
private sector.
OWCP accepted appellant’s claim and paid wage-loss compensation on the periodic
compensation rolls as of October 21, 2013. The record establishes that appellant returned to fulltime work on September 18, 2016 in the private sector. However appellant continued to receive
19

5 U.S.C. § 8102(a).

20

Id. at § 8116(a); see Danny E. Haley, 56 ECAB 393 (2005).

21

20 C.F.R. § 10.500.

22

5 U.S.C. § 8129(a).

23
Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on Actual
Earnings, Chapter 2.815.3(b) (June 2013). See Albert C. Shadrick, supra note 4.

6

temporary total wage-loss compensation from September 18, 2016 through February 4, 2017,
resulting in an overpayment of compensation.24
During the period September 18, 2016 through February 4, 2017, appellant received wageloss compensation by direct deposit payment. In a compensation termination worksheet and in its
preliminary overpayment determination, OWCP noted that appellant’s gross compensation for the
period September 18, 2016 through February 4, 2017 totaled $11,560.00. Utilizing the Shadrick
formula,25 OWCP took appellant’s actual weekly earning capacity of $750.38 and divided it by
the current weekly pay rate for the job and step when injured effective September 18, 2016 of
$789.89 to find that he had 95 percent wage-earning capacity or $727.10. It then determined
appellant’s weekly pay rate when injured of $765.37 and subtracted the weekly amount of $727.10
he was earning to find that the wage-earning capacity amount was $38.27. Since he was receiving
augmented compensation, the weekly compensation pay rate was $28.70.
OWCP reported that, had proper adjustments been made to his disability compensation to
reflect his actual employment, he would have received $575.00 for this time period. It properly
calculated that, for each periodic roll cycle of 28 days, appellant should have been paid $114.80,
which when adjusted for the Consumer Price Index, amounted to $115.00. As he was paid wageloss compensation for five periodic roll payment cycles of 28 days ($115.00 times 5), OWCP
properly calculated that he was due $575.00 for the period September 18, 2016 through
February 4, 2017. However, appellant received compensation for this period in the amount of
$11,560.00. The difference between these two amounts, $10,985.00, is the amount of the
overpayment of compensation, as calculated by OWCP.26
Accordingly, the Board finds that OWCP properly determined that appellant received an
overpayment of compensation in the amount of $10,985.00 from September 18, 2016 through
February 4, 2017 as he had actual earnings from private-sector employment and was not entitled
to compensation for temporary total disability wage-loss compensation.27
LEGAL PRECEDENT -- ISSUE 3
5 U.S.C. § 8129(b) provides: Adjustment or recovery by the United States may not be
made when incorrect payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of FECA or would be against equity and good
conscience.28 A claimant who is at fault in the creation of the overpayment is not entitled to

24

See J.S., Docket No. 17-0260 (issued December 28, 2017); see also J.W., Docket No. 15-1163 (issued
January 13, 2016).
25

See Albert C. Shadrick, supra note 4.

26

See J.S., id.; C.F., Docket No. 16-1718 (issued August 21, 2017).

27

See C.R., Docket No. 17-0117 (issued April 4, 2018); S.K., Docket No. 08-0961 (issued April 7, 2009); V.G.,
Docket No. 07-0916 (issued November 15, 2007).
28

5 U.S.C. § 8129(b).

7

waiver.29 On the issue of fault, 20 C.F.R. § 10.433(a) provides that an individual will be found at
fault if he or she has done any of the following: (1) made an incorrect statement as to a material
fact which he or she knew or should have known to be incorrect; (2) failed to provide information
which he or she knew or should have known to be material; or (3) accepted a payment which he
or she knew or should have known was incorrect.
With respect to whether an individual is without fault, section 10.433(b) of OWCP’s
regulations provide that whether or not OWCP determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those circumstances
and the individual’s capacity to realize that he or she is being overpaid.30
ANALYSIS -- ISSUE 3
The Board finds that appellant was without fault with regard to OWCP’s first direct deposit
following his return to work, but he was at fault in the creation of the overpayment resulting from
the subsequent deposits.
OWCP paid appellant compensation by EFT every 28 days. Appellant returned to work
on September 18, 2016. The record reflects that on October 15, 2016, OWCP paid him
compensation for the period September 18 to October 15, 2016 in the amount $2,312.00. There is
no documentation or other evidence to demonstrate that appellant had clear knowledge at the time
the bank received the October 15, 2016 EFT that the payment was incorrect.31 The Board thus
finds that appellant was without fault in accepting the initial direct deposit covering the period of
the overpayment September 18 to October 15, 2016.
The Board finds that the case is not in posture for decision regarding the issue of waiver of
recovery of the overpayment for the period September 18 to October 15, 2016. The Board will set
aside the October 16, 2017 decision regarding the issue of fault for that period and remand the case
for OWCP to determine whether appellant is entitled to waiver of recovery of the overpayment
covering the period September 18 to October 15, 2016.
The Board further finds that appellant was at fault in the creation of the overpayment
resulting from the remaining EFT payments for the period October 16, 2016 to February 4, 2017.32
In an October 21, 2013 letter, appellant was notified that, to avoid an overpayment of
compensation, he must immediately notify OWCP of his return to work. He was required to return
any check to OWCP which included a period during which he worked. Although OWCP may
have been negligent in making incorrect payments, this does not excuse a claimant from accepting
29

See Robert W. O’Brien, 36 ECAB 541, 547 (1985).

30

20 C.F.R. § 10.433(b).

31

See M.M., Docket No. 15-0265 (issued May 27, 2015); Danny E. Haley, 56 ECAB 393 (2005); Federal (FECA)
Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.2(a) (May 2004).
32

D.W., Docket No. 14-0229 (issued April 17, 2014).

8

payments he knew or should have known to be incorrect.33 In cases involving a series of incorrect
payments, where the requisite knowledge is established by documentation from OWCP or simply
with the passage of time and opportunity for discovery, the claimant will be at fault for accepting
the payments subsequently deposited. By the time of the second payment, appellant should have
known that he was not entitled to the same amount of wage-loss compensation as he had received
prior to his return to work on September 18, 2016.34 After his receipt of the first direct deposit
following his return to work, he was on notice that OWCP began to make payments to him in error
and knew or should have known that he was not entitled to the benefit of the subsequent direct
deposit.
Each recipient of compensation benefits is responsible for taking all reasonable measures
to ensure that payment appellant receives from OWCP is proper.35 The fact that OWCP may have
been negligent in issuing the payments does not mitigate this finding.36 In light of OWCP’s clear
mandate to provide notification of a return to work and to return any payment received, which
included a period during which appellant worked, a reasonable person would have known that an
overpayment had occurred.37 As appellant was at fault in creating the overpayment of
compensation for the period October 16, 2016 to February 4, 2017, he is not eligible for waiver of
recovery with respect to the portion of the overpayment for this period.
The Board finds that this case is not in posture for decision regarding the issue of waiver
of the recovery of the overpayment for the period September 18 to October 15, 2016. The Board
will remand the case for OWCP to determine whether appellant is entitled to waiver of recovery
of the overpayment created for this period.38 The Board finds that OWCP properly determined
that he was at fault for the remaining period of overpayment, October 16, 2016 through
February 4, 2017. As appellant was at fault under the third fault standard outlined above, recovery
of the remaining overpayment of compensation may not be waived.39
Finally, as appellant’s eligibility for waiver for a portion of the overpayment cannot yet be
determined, the issue of recovery will not be considered in the present appeal. On remand he will
have an opportunity to submit and have OWCP consider relevant financial evidence on this issue.
Following this and all other development deemed necessary, OWCP shall issue a de novo decision
in the case.40
33

See C.G., Docket No. 15-0701 (issued December 9, 2015).

34

Id.

35

K.M., Docket No. 16-0802 (issued November 23, 2016).

36

C.F., Docket No. 16-1718 (issued August 21, 2017).

37

See V.G., Docket No. 07-0916 (issued November 15, 2007).

38

See D.W., supra note 32.

39

No waiver of an overpayment is possible if the claimant is at fault in creating the overpayment. L.J., 59 ECAB
264 (2007).
40

P.L., Docket No. 16-0127 (issued May 3, 2016).

9

CONCLUSION
The Board finds that OWCP properly determined that appellant abandoned his request for
a prerecoupment hearing before an OWCP representative. The Board also finds that OWCP
properly determined that appellant received an overpayment of compensation during the period
September 18, 2016 through February 4, 2017 in the amount of $10,985.00. The Board further
finds that he was without fault in the creation of the overpayment for the period September 18 to
October 15, 2016, but that he was at fault in the creation of the overpayment for the period
October 16, 2016 to February 4, 2017. The case will be remanded for OWCP to consider waiver
of recovery of the overpayment from September 18 to October 15, 2016.41
ORDER
IT IS HEREBY ORDERED THAT the October 16, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further proceedings consistent with this opinion of the Board.
Issued: September 14, 2018
Washington, DC

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

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

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

41

On appeal appellant contends that he was paid at the incorrect pay rate from October 2013 through
September 18, 2016. The Board notes that the period predates the overpayment period in this claim, which is from
September 18, 2016 through February 4, 2017.

10