United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Ventura, CA, Employer
__________________________________________

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Appearances:
Sally F. LaMacchia, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0875
Issued: August 13, 2021

Case Submitted on the Record

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

JURISDICTION
On March 11, 2020 appellant, through counsel, filed a timely appeal from a September 17,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1

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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the September 17, 2019 decision, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant met her burden of proof to establish a recurrence of
disability, commencing October 22, 2015, causally related to her accepted March 13, 2013
employment injury.
FACTUAL HISTORY
On March 14, 2013 appellant, then a 54-year-old dispatch/window clerk, filed a traumatic
injury claim (Form CA-1) alleging that on March 13, 2013 she sustained an injury when her foot
became stuck between two floor mats and she fell to the floor, landing on her right shoulder while
in the performance of duty. She did not stop work at that time. OWCP accepted appellant’s claim
for right shoulder contusion, right shoulder/upper arm sprain, lumbar sprain, neck sprain, and
concussion without loss of consciousness. Appellant stopped work for intermittent periods,
commencing November 6, 2013, and OWCP paid her wage-loss compensation on the
supplemental rolls commencing that date.
On January 28, 2014 appellant began working in a modified-duty position, which involved
working in a passport office and required sitting for eight hours per day, engaging in simple
grasping for eight hours, and standing/walking as necessary for minimal periods. The physical
duties of the position were based on work restrictions provided on January 22, 2014 by Dr. Hrair
Darakjian, a Board-certified orthopedic surgeon, who indicated that appellant was restricted from
lifting more than 10 pounds, performing overhead work, and engaging in prolonged neck flexion.
In an October 21, 2015 report, Dr. Daniel A. Capen, an attending Board-certified
orthopedic surgeon, noted that on physical examination appellant exhibited a markedly positive
head compression sign, positive Spurling’s maneuver to the right, and pain on right scapular
retraction. He diagnosed cervical sprain/strain syndrome, right shoulder impingement with
shoulder spurs and rotator cuff tendinopathy, spinal sprain/strain syndrome, knee contusion, and
likely disc herniation syndrome.
A November 10, 2015 SF-50 indicated that appellant retired from the employing
establishment on disability retirement, effective October 22, 2015. Appellant submitted additional
progress reports from Dr. Capen dated December 2, 2015 and January 6, 2016. In a January 21,
2016 report of termination of disability and/or payment (Form CA-3), appellant’s supervisor noted,
“Please see attached job offer -- [eight] hours of work was available.” She advised that appellant
retired on disability retirement on October 22, 2015 and indicated, “Accommodated employee,
[eight] hours of work within her restrictions.” Attached was the job offer for the limited-duty
position at a passport office in which appellant began working on January 28, 2014.
Appellant submitted progress reports from Dr. Capen dated February 3, March 2, April 6,
June 1, July 6, August 24, and October 19, 2016. Dr. Capen began to recommend that appellant
undergo right shoulder surgery, including subacromial decompression with acromioclavicular
decompression, and possible right rotator cuff repair. In his February 3, 2016 report, he indicated
that appellant remained disabled.

2

On September 22, 2016 OWCP referred appellant for a second opinion examination to
Dr. Steven W. Pearson, a Board-certified orthopedic surgeon. It requested that he evaluate
whether appellant had disability causally related to her accepted March 13, 2013 employment
injury. In a November 9, 2016 report, Dr. Pearson diagnosed severe spondylosis with degenerative
disc disease, cystic bony changes, and facet arthrosis at C3-6; right shoulder impingement, possible
right rotator cuff tear, and right acromioclavicular joint arthropathy and lumbar strain with disc
disease. He found that these conditions were “medically connected” to the accepted March 13,
2013 employment injury and that appellant needed right shoulder surgery due to the effects of that
injury.4 In a December 13, 2016 supplemental report, Dr. Pearson clarified that appellant’s
cervical and lumbar spine conditions were directly caused by the March 13, 2013 injury and that
her right shoulder conditions were directly caused by that injury.
By decision dated January 18, 2017, OWCP expanded the accepted conditions to include
right shoulder impingement syndrome and cervical disc disorder with radiculopathy, mid-cervical
region.
Appellant submitted progress reports from Dr. Capen dated January 11, 2017 to March 7,
2018, as well as a February 28, 2017 magnetic resonance imaging (MRI) scan of the lumbar spine,
March 20, 2017 and March 30, 2018 MRI scans of the cervical spine, and April 17, 2018 MRI
scans of both knees. On April 5, 2017 Dr. Capen provided the additional diagnosis of right
shoulder impingement with acromioclavicular arthropathy and on March 7, 2018 he provided the
additional diagnoses of knee internal derangement, likely degenerative arthritis, lumbago, cervical
discopathy, and significant irritability with lumbago-like symptomatology.
On April 13, 2018 appellant filed a claim for compensation (Form CA-7) for wage-loss
compensation, claiming disability from work for the period October 22, 2015 through
April 14, 2018.5 On the employing establishment’s portion of the Form CA-7 a personnel
specialist provided a May 4, 2018 notation, indicating that appellant was a former employee “no
longer on rolls,” effective November 2, 2015, and that she had retired on disability retirement,
effective the same date. The specialist noted that “work was available for [eight hours] a day.”
Appellant submitted a May 2, 2018 progress report from Dr. Capen who indicated, under the
heading “disability status,” that she “is permanent and stationary.”
In a May 15, 2018 letter, OWCP requested that the employing establishment indicate
whether it would have been able to accommodate appellant in full-time work under Dr. Pearson’s
work restrictions if she had not retired on October 22, 2015. In a May 16, 2018 letter, the
employing establishment indicated that reference should be made to “enclosed information

4

In his November 9, 2016 report, Dr. Pearson noted that the restrictions in an attached work capacity evaluation
(Form OWCP-5c) constituted appellant’s restrictions based on the aggravation of her preexisting conditions by the
March 13, 2013 employment injury. In a November 15, 2016 OWCP-5c form, he indicated that appellant was
restricted from sitting more than six hours per day, walking/standing more than four hours, lifting more than 20
pounds, or pushing/pulling more than 30 pounds.
5
Appellant later indicated that she stopped work in June 2014, but she only claimed wage-loss compensation for
disability commencing October 22, 2015.

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regarding full-time modified duty.” OWCP attached a copy of the modified-duty position in which
appellant began working on January 28, 2014.
In a May 17, 2018 development letter, OWCP requested that appellant submit additional
factual and medical evidence in support of her recurrence of disability claim. It afforded her 30
days to respond.6
In a May 25, 2018 letter, counsel argued that appellant sustained a recurrence of disability
on October 22, 2015, because there was no clear, written evidence in the case record that work
was available to her at that time, which accommodated her work restrictions necessitated by the
accepted March 13, 2013 employment injury. Appellant submitted an April 4, 2018 progress
report from Dr. Capen.
By decision June 19, 2018, OWCP denied appellant’s claim, finding that she had not
submitted sufficient medical evidence to establish a recurrence of disability on or after October 22,
2015 causally related to her accepted March 13, 2013 employment injury. It also noted, “[i]n
addition, your employing agency notified this office that full-time modified work was available,
and would have continued to be available had [appellant] not elected disability retirement.”
On June 19, 2019 appellant, through counsel, requested reconsideration of the June 19,
2018 decision. Counsel continued to argue that on October 22, 2015 work was not available to
appellant, which accommodated her work restrictions necessitated by the accepted March 13, 2013
employment injury. Appellant submitted an Office of Personnel Management (OPM) form for
agency certification of reassignment and accommodation efforts (Form 3112D), signed by an
employing establishment official on July 27, 2015. In the portion of the form requesting
information about whether a reasonable effort for accommodation had been made, the official
checked a box indicating, “Yes, describe below accommodation efforts made, attach supporting
documentation, and provide narrative analysis of any unsuccessful accommodation efforts.” The
official added the notation, “If any confusion, please see supervisor’s statement (SF 3112B).” In
the portion of form requesting information about the results of the agency’s reassignment efforts,
the official checked a box indicating, “Reassignment is not possible. There are no vacant positions
at this agency, at the same grade or pay level and tenure within the same commuting area for which
the employee meets minimum qualifications standards.”7
In a June 19, 2019 statement, appellant asserted that she stopped work in June 2014 and
alleged that on October 22, 2015 no work was available to her, which was within her work
restrictions. She also submitted progress reports from Dr. Capen dated between June 13, 2018 and
August 7, 2019. In his June 13, 2018 report, Dr. Capen indicated that appellant remained disabled.
By decision dated September 17, 2019, OWCP denied modification of its June 19, 2018
decision. It found that appellant had not established that the employing establishment did not have
6

OWCP also developed the issue of whether appellant’s request for right shoulder surgery should be authorized.
On March 14, 2019 it advised appellant in an informational letter that it could not authorize her request for right
shoulder surgery. The issue of surgery authorization is not currently before the Board.
7

The official also checked a box indicating that appellant was occupying a permanent position.

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work available to her on October 22, 2015, which was within the restrictions necessitated by her
accepted March 13, 2013 employment injury.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment.8 This term also means an inability to work because a light-duty assignment made
specifically to accommodate an employee’s physical limitations, and which is necessary because
of a work-related injury or illness, is withdrawn or altered so that the assignment exceeds the
employee’s physical limitations.9 A recurrence does not occur when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties, or a reduction in force.10 OWCP’s
procedures provide that a recurrence of disability includes a work stoppage caused by a
spontaneous material change in the medical condition demonstrated by objective findings. That
change must result from a previous injury or occupational illness rather than an intervening injury
or new exposure to factors causing the original illness. It does not include a condition that results
from a new injury, even if it involves the same part of the body previously injured.11
An employee who claims a recurrence of disability due to an accepted employment-related
injury has the burden of proof to establish by the weight of the substantial, reliable, and probative
evidence that the disability for which he or she claims compensation is causally related to the
accepted injury. This burden of proof requires that a claimant furnish medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that,
for each period of disability claimed, the disabling condition is causally related to the employment
injury, and supports that conclusion with medical reasoning.12 Where no such rationale is present,
the medical evidence is of diminished probative value.13
ANALYSIS
The Board finds that this case is not in posture for decision.
The Board finds that the evidence of record is ambiguous with respect to whether the
employing establishment had work available to appellant on October 22, 2015, which was within
the work restrictions necessitated by her accepted March 13, 2013 employment injury. As noted
above, a recurrence of disability may be found when a light-duty assignment made specifically to
8

20 C.F.R. § 10.5(x); see J.D., Docket No. 18-1533 (issued February 27, 2019).

9

Id.

10

Id.

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2b (June 2013); L.B., Docket
No. 18-0533 (issued August 27, 2018).
12

J.D., Docket No. 18-0616 (issued January 11, 2019); see C.C., Docket No. 18-0719 (issued November 9, 2018).

13

H.T., Docket No. 17-0209 (issued February 8, 2018).

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accommodate an employee’s physical limitations, and which is necessary because of a workrelated injury or illness, is withdrawn or altered so that the assignment exceeds the employee’s
physical limitations.14
The case record contains a January 21, 2016 Form CA-3 in which appellant’s supervisor
noted, “[p]lease see attached job offer -- [eight] hours of work was available.” She advised that
appellant retired on disability retirement on October 22, 2015 and indicated, “[a]ccommodated
employee, [eight] hours of work within her restrictions.” Attached was the job offer for the
limited-duty position at a passport office in which appellant began working on January 28, 2014.15
The Board notes, however, that it is unclear how the presentation of a job offer document
from January 28, 2014 demonstrates that an actual position accommodating appellant’s
contemporaneous work restrictions due to the March 13, 2013 employment injury was in fact
available to appellant on or about October 22, 2015, i.e., the date that she claimed she sustained a
recurrence of disability. In addition, the case record contains other evidence, which creates further
ambiguity regarding whether work appropriate for appellant’s injury-related work restrictions was
available on or about October 22, 2015. Appellant submitted an OPM form for agency
certification of reassignment and accommodation efforts (Form 3112D), signed by an employing
establishment official on July 27, 2015. In the portion of the form requesting information about
whether a reasonable effort for accommodation had been made, the official checked a box
indicating, “Yes, describe below accommodation efforts made, attach supporting documentation,
and provide narrative analysis of any unsuccessful accommodation efforts.” The official added
the notation, “[i]f any confusion, please see supervisor’s statement (SF 3112B).” However, the
case record does not contain such a supervisor’s statement or further description of any
accommodation efforts undertaken. Moreover, in the portion of form requesting information about
the results of the agency’s reassignment efforts, the official checked a box indicating,
“[r]eassignment is not possible. There are no vacant positions at this agency, at the same grade or
pay level and tenure within the same commuting area for which the employee meets minimum
qualifications standards.”16
While the claimant has the burden to establish entitlement to compensation, OWCP shares
responsibility in the development of the factual evidence, particularly when such evidence is of
the character normally obtained from the employing establishment or other government source.17
For these reasons, in order to properly evaluate appellant’s claim for an October 22, 2015
recurrence of disability caused by her accepted March 13, 2013 employment injury, it is necessary
14

See supra note 10.

15

In a May 16, 2018 letter, the employing establishment also referenced the January 28, 2014 job offer as evidence
that appropriate work was available to appellant on October 22, 2015. In addition, on the Form CA-7 effectuating
appellant’s recurrence claim, a personnel specialist provided a May 4, 2018 notation indicating that appellant was a
former employee “no longer on rolls,” effective November 2, 2015, and that she had retired on disability retirement
effective the same date. The specialist noted that “work was available for [eight hours] a day.”
16

The official also checked a box indicating that appellant was occupying a permanent position, but the official did
not provide any further description of the position.
17

See M.H., Docket No. 19-0930 (issued June 17, 2020); L.L., Docket No. 12-194 (issued June 5, 2012); N.S., 59
ECAB 422 (2008).

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to remand the case to OWCP for further development of the matter of the availability of appropriate
work. Therefore, the case shall be remanded to OWCP for further development of appellant’s
recurrence of disability claim to include evaluation of whether the employing establishment had
work available to appellant on or about October 22, 2015, which was within the restrictions
necessitated by her accepted March 13, 2013 employment injury. Following such further
consideration and after such further development as it deems necessary, OWCP shall issue a de novo
decision with respect to appellant’s recurrence of disability claim.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the September 17, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
proceedings consistent with this decision.
Issued: August 13, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
DEPARTMENT OF THE NAVY, MILITARY
SEALIFT COMMAND AFLOAT PERSONNEL
MANAGEMENT CENTER, Norfolk, VA,
Employer
__________________________________________

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

Docket No. 11-370
Issued: September 6, 2011

Case Submitted on the Record

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

JURISDICTION
On November 19, 2010 appellant filed a timely appeal from a September 20, 2010
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying his
request for reconsideration. 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 nonmerit decision.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits on the grounds that his request was untimely and failed to demonstrate clear
evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. In a May 15, 2007 decision, the Board
affirmed OWCP’s February 9 and October 4, 2006 decisions denying appellant’s occupational
disease claim. The Board found that the medical evidence of record was insufficient to establish
that he sustained an injury due to work factors as alleged.2 In a July 22, 2010 decision, the Board
denied appellant’s request for reconsideration on the grounds that it was untimely and failed to
establish clear evidence of error.3 The facts of the case are set forth in the Board’s prior
decisions and are incorporated herein by reference.
On August 4, 2010 appellant, through his representative, filed a request for
reconsideration. Counsel stated that the request was “based on all of the necessary medical
evidence that [had] been sent to [OWCP].”
Appellant submitted an April 15, 2010 report from Dr. Mark Khorsandi, a Board-certified
osteopath, specializing in general surgery. Dr. Khorsandi provided examination findings and
diagnosed ulnar neuropathy, carpal tunnel syndrome (CTS) and cervical disc degeneration. He
stated that appellant had been injured in a ship accident in 1996, and sustained an injury to his
left index finger requiring surgery at the metacarpophalangeal joint.
On April 15, 2010 Dr. Joseph Dang, a Board-certified physiatrist, provided the results of
an electrodiagnostic evaluation. He noted that appellant had been experiencing pain in the
bilateral wrists and hands, as well as numbness and tingling in his fingers, for six years and also
had cervical discogenic disc disease. Dr. Dang provided findings on examination and reported
the results of nerve conduction studies, which revealed left carpal tunnel entrapment in both
motor and sensory involvement, chronic neuropathy of left ulnar nerve most likely at the elbow
and no electrodiagnostic evidence of left cervical radiculopathy.
Appellant provided a May 12, 2010 surgical report from Dr. Khorsandi for a left ulnar
entrapment neuropathy procedure; an undated work excuse for an indefinite period of time
beginning May 13, 2010; progress notes from Dr. Khorsandi dated May 13 and 20, June 3 and
July 15, 2010, all of which contained diagnoses of ulnar neuropathy, carpal tunnel syndrome
(CTS) and cervical disc degeneration; a June 28, 2010 return-to-work slip from Dr. Khorsandi
reflecting his opinion that appellant could return to unrestricted duty on May 20, 2010; and a
prescription for physical therapy.

2

Docket No. 07-367 (issued May 15, 2007). On June 24, 2004 appellant, a 64-year-old deck engineer/machinist
filed an occupational disease claim alleging that he developed pain in his shin area, which he attributed to an “old
accident.” He later attributed his medical condition to both a November 12, 1996 accident at work and his work
duties, including heavy lifting, continuous bending, climbing and standing for extended periods. OWCP accepted
that appellant sustained a work incident on November 12, 1996 when a door hit his left shoulder and he fell to the
deck of a ship, but found that the medical records failed to provide a firm diagnosis related to the incident.
Appellant claimed that his cervical degenerative changes, left thumb and forefinger parenthesis, hearing loss and
cataracts were caused or aggravated by factors of his federal employment.
3

Docket No.10-133 (issued July 22, 2010).

2

In a September 20, 2010 decision, OWCP denied appellant’s request for reconsideration
of the merits of his claim on the grounds that it was untimely and failed to establish clear
evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of OWCP’s decision denying or terminating a benefit
under FECA, a claimant must file his or her application for review within one year of the date of
that decision.4 The Board has found that the imposition of the one-year limitation does not
constitute an abuse of the discretionary authority granted OWCP under section 8128(a) of
FECA.5
OWCP, however, may not deny an application for review solely on the grounds that the
application was not timely filed. When an application for review is not timely filed, it must
nevertheless undertake a limited review to determine whether the application establishes “clear
evidence of error.”6 OWCP regulations and procedure provide that OWCP will reopen a
claimant’s case for merit review, notwithstanding the one-year filing limitation set forth in 20
C.F.R. § 10.607(a), if the application for review shows “clear evidence of error” on the part of
OWCP.7
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.8 The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error.9 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.10 It is not enough merely to show that the evidence could be construed
4

20 C.F.R. § 10.607(a). According to OWCP’s procedure, the one-year period for requesting reconsideration
begins on the date of the original OWCP decision, but the right to reconsideration within one year also accompanies
any subsequent merit decision on the issues, including any merit decision by the Board. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3b (January 2004).
5

5 U.S.C. § 2128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

6

See 20 C.F.R. § 10.607(b); Charles I. Prudencio, 41 ECAB 499, 501-02 (1990).

7

20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.3d (January 2004). OWCP’s procedure further provides: “The term ‘clear evidence of error’ is intended to
represent a difficult standard. The claimant must present evidence which on its face shows that OWCP made an
error (for example, proof that a schedule award was miscalculated). Evidence such as a detailed, well-rationalized
medical report which, if submitted before the denial was issued, would have created a conflict in medical opinion
requiring further development, is not clear evidence of error.” Id. at Chapter 2.1602.3c.
8

See Dean D. Beets, 43 ECAB 1153 (1992).

9

20 C.F.R. § 10.607(b); Leona N. Travis, 43 ECAB 227, 240 (1991). The Board has found that reports
containing equivocal or speculative opinions on causal relationship are of limited probative value. See Leonard
O’Keefe, 14 ECAB 42, 48 (1962); James P. Reed, 9 ECAB 193, 195 (1956).
10

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

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so as to produce a contrary conclusion.11 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.12
ANALYSIS
In its September 20, 2010 decision, OWCP properly determined that appellant filed an
untimely request for reconsideration of OWCP’s denial of his claim for work-related
conditions.13 Appellant’s reconsideration request was filed on August 4, 2010, more than one
year after the most recent merit decision of record, namely, the Board’s May 15, 2007 decision.14
Therefore, he must demonstrate clear evidence of error on the part of OWCP.
Appellant contended that his claim was improperly denied as he submitted sufficient
medical evidence to support his claimed condition. This contention does not establish error on
the part of OWCP, but merely repeats arguments previously raised and considered by OWCP
and the Board. The Board finds that appellant’s contention is not persuasive as it is not
consistent with the general legal standards applicable to establishing a claim. Appellant’s
arguments on reconsideration are insufficient to raise a substantial question concerning the
correctness of OWCP’s denial of his claim or to shift the weight of the evidence in his favor.
Moreover, the medical evidence submitted by appellant is insufficient to establish clear
error by OWCP in denying his claim. Narrative reports from Dr. Dang and Dr. Khorsandi, both
dated April 15, 2010, do not address the underlying issue of causal relationship. They are,
therefore, irrelevant to the basis on which his claim was denied. The remaining medical
evidence submitted in support of appellant’s reconsideration request, including test results,
disability slips and progress notes, are similarly devoid of any opinion on causal relationship.
Consequently, these reports do not raise a substantial question as to the correctness of OWCP’s
decision. The term clear evidence of error is intended to represent a difficult standard. The
submission of a detailed, well-rationalized medical report which, if submitted prior to when the
denial was issued, would have created a conflict in medical opinion requiring further
development, is not clear evidence of error.15

11

See Leona N. Travis, supra note 9.

12

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

13

Appellant claimed that his multiple medical problems were due to both a November 12, 1996 accident at work
and his duties at work including engaging in heavy lifting, continuous bending, climbing and standing for extended
periods. OWCP accepted that appellant sustained a work accident on November 12, 1996 when a door hit his left
shoulder and he fell to the deck of a ship, but found that the medical records failed to provide a firm diagnosis
related to the incident.
14

See supra notes 6 and 7 and accompanying text.

15

Joseph R. Santos, 57 ECAB 554 (2006).

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For these reasons, the evidence and argument submitted by appellant does not raise a
substantial question concerning the correctness of OWCP’s prior decisions. The Board finds that
appellant did not establish clear evidence of error.16
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits on the grounds that his request was untimely filed and failed to demonstrate
clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the September 20, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 6, 2011
Washington, DC

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

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

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

16

On appeal, appellant contends that OWCP unfairly denied his occupational disease claim. For final adverse
decisions issued prior to November 19, 2008, a claimant had up to one year to appeal to the Board. See 20 C.F.R.
§ 501.3(d)(2). For final adverse Office decisions issued on and after November 19, 2008, a claimant has 180 days to
file an appeal with the Board. See 20 C.F.R. § 501.3(e). As the last merit decision in this case was issued on
May 15, 2007, the Board lacks jurisdiction to review the merits of this case. Moreover, the subject matter
adjudicated by the Board in its May 15, 2007 decision is not subject to further consideration by the Board absent
further review by OWCP. See Robert G. Burns, 57 ECAB 657 (2006); Clinton E. Anthony, 49 ECAB 476 (1998).

5


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

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

Docket No. 10-1866
Issued: July 1, 2011

Case Submitted on the Record

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

JURISDICTION
On July 7, 2010 appellant filed a timely appeal from a February 3, 2010 merit decision of
the Office of Workers’ Compensation Programs (OWCP) granting her a schedule award.
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 this claim.
ISSUE
The issue is whether appellant has established that she has greater than five percent right
lower extremity impairment, for which she received a schedule award.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated October 13, 2009, the
Board affirmed a September 26, 2008 Office overpayment decision.2 In the September 26, 2008
1

5 U.S.C. § 8101 et seq.

2

Docket No. 09-249 (issued October 13, 2009).

decision, the Office finalized an overpayment in the amount of $473.96 for the period based on
the underdeduction of postretirement life insurance and denied waiver of the overpayment. The
facts of the previous Board decision are incorporated herein by reference.3
On December 9, 2009 the Office referred appellant to Dr. Nicholas G. Sotereanos, a
Board-certified orthopedic surgeon for a second opinion evaluation to determine the extent of
appellant’s permanent impairment and her entitlement, if any, to a schedule award. On
January 15, 2010 Dr. Sotereanos reviewed the medical record and statement of accepted facts
and performed a physical examination. Right hip range of motion was 110 degrees flexion, 30
degrees internal rotation, 20 degrees external rotation and 30 degrees abduction. Using the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides), Dr. Sotereanos determined that appellant had five percent right
lower extremity impairment. In an accompanying permanent impairment worksheet, he
diagnosed acetabular labral tear. Dr. Sotereanos identified the grade modifiers for functional
history as zero, physical examination as zero and clinical studies as not applicable and the grade
as C. Under Table 16-24, page 549, he noted that her right hip range of motion was a class 1,
which resulted in a five percent impairment. Dr. Sotereanos concluded that appellant had five
percent left lower extremity impairment.
On February 2, 2010 Dr. Craig Uejo, a Board-certified physiatrist and Office medical
adviser, reviewed the evidence of record. He agreed with Dr. Sotereanos’s evaluation method,
application of the A.M.A., Guides and five percent right lower extremity impairment
determination. Dr. Uejo pointed out that appellant’s acetabular labral tear status post total
labrectomy is a class 1 diagnosis with a default rating of four percent impairment, Table 16-4,
page 513). The grade modified of one for functional history because of mild motion deficits
resulted in a grade B impairment, corresponding with a four percent lower extremity
impairment.4 As the motion loss resulted in a greater impairment, the five percent lower
extremity impairment for the 20 degrees external rotation per Table 16-24, page 549, should be
used.5
By decision dated February 3, 2010, the Office granted appellant a schedule award for a
five percent right lower extremity impairment. The award was for 14.4 weeks and ran from
January 17 to April 27, 2010.

3

On July 18, 2007 appellant, then a 50-year-old letter carrier, filed a traumatic injury claim alleging that on
February 8, 2007 she first realized she had a right hip labral tear. She noted that it was not until June 19, 2007 that
she realized this condition was employment related. By letter dated January 4, 2008, the Office accepted the claim
for right hip labral tear and placed appellant on the periodic rolls for temporary total disability.
4

The Board notes that, per Table 16-4, grades B and C result in the same percentage of lower extremity
impairment.
5

Although Dr. Uejo actually included 30 degrees loss for external rotation in his report, this is an apparent
typographical error as Dr. Sotereanos reported 20 degrees external rotation. Nonetheless, the amount of the
impairment remains the same.

2

LEGAL PRECEDENT
The schedule award provision of FECA6 and its implementing regulations7 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.8 Effective May 1, 2009, the Office adopted
the sixth edition of the A.M.A., Guides as the appropriate edition for all awards issued after that
date.9
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).10 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition (CDX), which is then adjusted by grade modifiers based on Functional
History (GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS).11 The net
adjustment formula is (GMFH-CDX) + (GMPE - CDX) + (GMCS - CDX).12
ANALYSIS
OWCP accepted that appellant sustained right hip labral tear due to her February 8, 2007
employment injury. In a January 15, 2010 report, Dr. Sotereanos, its referral physician and
Board-certified orthopedic surgeon, reviewed the medical evidence and statement of accepted
facts and provided findings on examination. Following review of the sixth edition of the
A.M.A., Guides, he determined that appellant had five percent right lower extremity impairment
due to her accepted right hip injury using Table 16-24, page 549. In reaching this conclusion,
Dr. Sotereanos identified the grade modifiers for functional history as zero, physical examination
as zero and clinical studies as not applicable and the grade as C. He found that her range of
motion for the right hip was a class 1. The file was then routed to the Office medical adviser,
Dr. Uejo, for an opinion concerning the nature or percentage of permanent impairment in
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. See Billy B. Scoles, 57 ECAB 258 (2005); C.M., Docket No. 09-1268 (issued January 22, 2010).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
10

A.M.A., Guides (6th ed. 2009), page 3, section 1.3, The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.
11

Id. at 383-419.

12

Id. at page. 411.

3

accordance with the A.M.A., Guides. On February 2, 2009 Dr. Uejo, a Board-certified
physiatrist and Office medical adviser, reviewed Dr. Sotereanos’ findings and concurred with his
conclusion that there was a five percent right lower extremity impairment as the loss of external
motion resulting in five percent lower extremity impairment was a greater impairment than the
diagnosis base of four percent for the labral tear status post total labrectomy.
There is no evidence supporting that appellant has a greater right lower extremity
impairment. Thus, appellant has not established entitlement to a greater than five percent right
lower extremity impairment.
CONCLUSION
The Board finds that appellant has no more than five percent permanent impairment of
the right lower extremity, for which she received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 3, 2010 is affirmed.
Issued: July 1, 2011
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.J., Appellant
and
TENNESSEE VALLEY AUTHORITY,
SEQUOYAH NUCLEAR PLANT, Daisy, TN,
Employer
__________________________________________

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

Docket No. 09-1490
Issued: November 23, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 26, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ May 13, 2009 merit decision terminating his compensation and
medical benefits and modifying its determination of his wage-earning capacity. Pursuant to
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 the Office met its burden of proof to terminate appellant’s
compensation and medical benefits and to modify its determination of his wage-earning capacity.
FACTUAL HISTORY
The Office accepted that on February 24, 1977 appellant, then a 35-year-old electrician,
sustained an aggravation of degenerative disc disease while moving light fixtures. Appellant
stopped work for various periods and received compensation for periods of partial and total
disability.

Appellant received treatment for his back condition from Dr. George Seiters, a Boardcertified orthopedic surgeon. On May 15, 1980 Dr. Seiters stated that appellant continued to
experience symptoms from the accepted lumbar disc disease. On examination, appellant showed
acute back and bilateral leg pain, worse on the right than the left. He had great difficulty moving
from one position to another. On the right side, appellant flexed only 10 degrees and extended 5
degrees, with complaints of pain. Lateral bending and rotation were severely limited with pain.
Straight leg raising in the sitting and recumbent positions was positive at 45 degrees and was
exacerbated by dorsiflexion of the ankle. Straight leg raising on the left was positive at 60
degrees. The sensory examination revealed a light deficit over the medial border of the right
foot. His reflexes were 2+ and symmetrical. Palpation of the back revealed maximum
tenderness at the L5-S1 level with 2+ spasms. Dr. Seiters opined that appellant was able to work
an eight-hour day, provided that he worked in a sedentary position. Appellant was precluded
from lifting more than 10 pounds; from any bending, climbing or twisting; from walking or
standing more than four hours per day; and from lifting, squatting or kneeling more than two
hours per day.
The record contains a job description for an electrical accessories assembler, which was
categorized as a sedentary position. On December 16, 1980 the Office medical adviser opined
that the position of electrical accessories assembler was within appellant’s restrictions and that
he should reasonably be expected to perform its duties.
In a formal loss of wage-earning capacity (LWEC) decision dated January 27, 1981, the
Office adjusted appellant’s compensation based on its determination that he had the ability to
earn the wages of an electrical accessories assembler at a weekly pay rate of $377.60.
In response to the Office’s request for updated medical evidence, appellant submitted
reports from Dr. McKinley S. Lundy, a Board-certified internist. In an April 18, 2006 report,
Dr. Lundy provided a history of injury and treatment. He noted that appellant had not had any
treatment for low back pain by any physician since he last saw Dr. Seiters in 1998. Dr. Lundy
diagnosed low back pain which, he opined within a reasonable degree of medical certainty, was
unrelated to the accepted 1977 injury. He stated that, although appellant complained of severe
lower back pain, there were no objective findings indicating that he was unable to work. On
November 29, 2007 Dr. Lundy reiterated his opinion that appellant’s complaints of low back
pain were not related to the 1977 injury.
On November 14, 2008 Dr. Lundy provided examination findings. Appellant had a
normal gait with good smooth ambulation without guarding. He was able to squat and arise
without difficulty, but complained of bilateral hip pain. Trendelenburg’s test was negative
bilaterally. Manual motor testing of the lower extremities was 5/5 bilaterally with flexion and
extension of the hips, knees, ankles and great toes, and with inversion and eversion of the ankles.
There was very good muscle tone and bulk of lower extremities. In the supine posture with leg
muscles relaxed, maximum circumference of the right lower leg was 41.4 centimeter (cm), with
maximum circumference of the left lower leg measuring 40.6 cm and 10 cm proximal to the
superior border of the patella; circumference of the right thigh measured 49.2 cm, with
circumference of the left thigh measuring 48.4 cm, demonstrating no thigh or lower leg atrophy.
Examination of the spine revealed that appellant was able to bend forward from the standing
posture, flexing his back with fingers extending to 15 inches above the level of the floor.

2

Extension and side bending were unremarkable. Achilles and patella reflexes were 2+
bilaterally. Sensibility to light touch was intact bilaterally on the dorsum, plantar, medial and
lateral surface of each foot. Seated straight leg raising test was negative bilaterally. On palpation
of the lumbar and thoracic spine, Dr. Lundy found no tenderness or spasm of paravertebral
muscles, midline tenderness or step-offs. Neither axial compression nor trunk rotation produced
a complaint of low back pain. Appellant was able to heel walk without difficulty and was able to
rise up on toes with hands against the wall. Upper trapezius muscles were well developed
bilaterally. He got onto and off of the examination table with ease and without guarding.
In the November 14, 2008 report, Dr. Lundy opined that appellant’s complaints of low
back pain were unrelated to the 1977 injury and that there were no objective findings which
precluded appellant’s return to work. He recommended no work restrictions, noting that
appellant had symmetrical reflexes and no motor or sensory deficit in the lower extremities. The
hip and leg pain level reportedly improved with activity, self-prescribed white willow bark tea
and heat treatment. Dr. Lundy noted that there was no medical evidence that willow bark tea,
which appellant had been using to treat his back pain, aids in the treatment of osteoarthritis.
On March 11, 2009 the Office advised appellant that it proposed to terminate his medical
and compensation benefits because the medical evidence established that he no longer had any
residuals from his accepted 1977 work injury. Appellant was given 30 days to provide additional
evidence or argument supporting his continued disability or continuing residuals.
On April 6, 2009 the Office issued a notice of proposed modification of the January 27,
1981 LWEC determination based on his ability to return to work without restrictions, as
described in the March 11, 2009 notice.
Appellant submitted a report of a March 20, 2009 magnetic resonance imaging (MRI)
scan of the lumbar spine and two reports from Dr. Howard Brock, a Board-certified family
practitioner. In an undated report, received on March 27, 2009, Dr. Brock disagreed with
Dr. Lundy’s conclusion that appellant was able to return to gainful employment. He opined that
this 68-year-old man was incapable of physically functioning with adult daily living activities
without assistance. In a letter dated May 9, 2009, Dr. Brock reiterated his disagreement with
Dr. Lundy’s report. Referencing the March 20, 2009 MRI scan report, he stated that appellant
had at least two herniated discs that precluded him from performing any type of work that
demands lifting, bending or twisting. Noting appellant’s claim that Dr. Lundy had not performed
the testing and procedures reported, Dr. Brock recommended that appellant be examined by an
orthopedic surgeon.1
In a May 13, 2009 decision, the Office terminated appellant’s compensation and medical
benefits and modified its determination of his wage-earning capacity effective that date.

1

Dr. Brock’s letter was dated May 9, 2009; however, as it was received by the Office on April 16, 2009, it is not
possible to determine the correct date of the letter.

3

LEGAL PRECEDENT
Under the Federal Employees’ Compensation Act,2 once the Office has accepted a claim,
it has the burden of justifying termination or modification of compensation benefits.3 It may not
terminate compensation without establishing that the disability ceased or that it was no longer
related to the employment.4 The Office’s burden of proof includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.5
Once a loss of wage-earning capacity is determined, a modification of such a
determination is not warranted unless there is a material change in the nature and extent of the
employment-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was in fact erroneous.6 The burden of proof is on the
party attempting to show the award should be modified.7
When an LWEC has been issued and the medical evidence establishes that the
employment-related residuals of the injury have ceased, a proposed decision to both modify the
LWEC and terminate benefits should be issued because (a) the claimant’s condition has changed
(and that is one of the reasons to modify an LWEC) and (b) the medical evidence on file now
supports no ongoing residuals related to the work injury. The two issues are linked and both
must be addressed in a situation like this.8
ANALYSIS
The Office accepted that on February 24, 1977 appellant sustained an aggravation of
degenerative disc disease. On January 27, 1981 it issued a wage-earning capacity decision based
on its determination that he had the ability to earn the wages of an electrical accessories
assembler at a weekly pay rate of $377.60. The Board finds that the Office failed to meet its
burden of proof to terminate appellant’s compensation and medical benefits and to modify its
determination of his wage-earning capacity effective May 13, 2009.
The Office’s January 27, 1981 LWEC decision was based on Dr. Seiters’ opinion that
although appellant continued to experience symptoms from the accepted lumbar disc disease,
including acute back and bilateral leg pain, he was able to work an eight-hour day in a sedentary
position. Appellant was restricted from lifting more than 10 pounds; from any bending, climbing

2

5 U.S.C. §§ 8101-8193.

3

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

4

Id.

5

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

6

George W. Coleman, 38 ECAB 782, 788 (1987); Ernest Donelson, Sr., 35 ECAB 503, 505 (1984).

7

Jack E. Rohrabaugh, 38 ECAB 186, 190 (1986).

8

FECA Bulletin No.09-05, Part IA(5) (issued August 18, 2009).

4

or twisting; from walking or standing more than four hours per day; and from lifting, squatting or
kneeling more than two hours per day.
In its May 13, 2009 decision, the Office found that the weight of the medical evidence
was encompassed in Dr. Lundy’s November 14, 2008 report, which established that appellant no
longer had residuals from his accepted condition and that his condition had improved such that
he could return to work without restrictions. The Board finds, however, that Dr. Lundy’s report
is of limited probative value and is insufficient to meet the Office’s burden of proof. Dr. Lundy
stated that, although appellant complained of severe lower back pain, there were no objective
findings to indicate that he was unable to work. However, he did not address the results of recent
x-rays or MRI scans, which would have reflected the status of appellant’s accepted degenerative
disc disease. Dr. Lundy opined that appellant was not disabled and that his complaints of pain
were unrelated to the accepted 1977 injury. However, he did not explain the basis for his
opinion, or why appellant’s preexisting degenerative disc condition could not be responsible for
the alleged pain. The Board has held that a medical opinion that is not fortified by rationale is of
diminished probative value.9 The Board notes that Dr. Lundy did not have the benefit of
reviewing the March 20, 2009 MRI scan report, which revealed the existence of two herniated
discs.
Dr. Brock disagreed with Dr. Lundy’s conclusion that appellant was able to return to
gainful employment. He opined that this 68-year-old man was incapable of physically
functioning with adult daily living activities without assistance. Referencing a March 20, 2009
MRI scan report, he stated that appellant had at least two herniated discs that precluded him from
performing any type of work that demands lifting, bending or twisting. Dr. Brock’s reports are
of limited probative value, in that they do not contain examination findings and are insufficiently
rationalized. However, together with the March 20, 2009 MRI scan report, they provide
evidence of a continuing degenerative back condition.
The Board finds that Office failed to satisfy its burden of proof. The medical evidence of
record is not sufficiently rationalized to establish that appellant no longer has residuals from his
accepted injury, or that the January 27, 1981 LWEC determination should be modified.
Dr. Lundy’s reports did not establish by the weight of the evidence that appellant’s entitlement to
benefits had ceased or that his wage-earning capacity had improved. The Office failed to follow
its own procedures to either seek clarification from Dr. Lundy, or to obtain a second opinion
evaluation.10 Further development of the medical evidence was called for, particularly in light of
Dr. Brock’s findings of continuing residuals.
CONCLUSION
As the Office did not establish that appellant no longer had residuals from his accepted
condition or that there was a material change in the nature and extent of the employment-related

9

Cecilia M. Corley, 56 ECAB 662 (2005).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.8(a) (October 2005). See also id. at Chapter 2.810.9 (October 2005).

5

condition, it improperly terminated compensation and medical benefits and improperly modified
the January 27, 1981 LWEC determination.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
May 13, 2009 decision is reversed.
Issued: November 23, 2009
Washington, DC

David S. Gerson, 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
_________________________________________
W.M., Appellant
and
U.S. POSTAL SERVICE, KILMER
PROCESSING & DISTRIBUTION CENTER,
Edison, NJ, Employer
_________________________________________

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

Docket No. 11-1706
Issued: March 20, 2012

Case Submitted on the Record

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

JURISDICTION
On July 18, 2011 appellant, through his attorney, filed a timely appeal from an April 14,
2011 decision of the Office of Workers’ Compensation Programs (OWCP) regarding a 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 more than a two percent impairment of the left upper
extremity, for which he received a schedule award.
On appeal, counsel contends that OWCP improperly chose the less favorable of two
rating methods to calculate appellant’s schedule award. Alternatively, he asserts a conflict of
medical evidence between an attending physician and an OWCP medical adviser regarding the
percentage of permanent impairment.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on February 11, 2009 appellant, then a 58-year-old mechanic,
sustained a median nerve crush injury to his left wrist and distal forearm while removing mail
stuck in a sorting machine. Appellant stopped work at the time of the injury and received
treatment in a hospital emergency room.2 On February 12, 2009 Dr. Russell L. Ashinoff, an
attending Board-certified plastic and reconstructive surgeon, performed an open release of the
left median nerve at the carpal tunnel and distal forearm. He diagnosed a crush injury of the left
distal forearm causing acute compression syndrome of the left median nerve.
Appellant received compensation for temporary total disability from March 29 to
July 17, 2009.3 In an October 23, 2009 report, Dr. Ashinoff noted two-point discrimination at
eight millimeters at the distal tip of the left index and middle fingers. He released appellant to
full duty as of October 27, 2009.
On June 10, 2010 appellant claimed a schedule award. He submitted a February 24, 2010
impairment rating by Dr. Arthur Becan, an orthopedic surgeon, under the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter,
“A.M.A., Guides”). Dr. Becan reviewed a history of injury and treatment. He obtained
Disabilities of the Arm, Shoulder and Hand (QuickDASH) score of 36 for the left arm. On
examination of the left wrist, Dr. Becan observed hypertrophy of the surgical scar, a positive
Tinel’s sign over the median nerve, dorsiflexion and palmar flexion limited to 50 degrees and
ulnar deviation limited to 25 degrees. He diagnosed adhesive capsulitis of the left wrist, noting
that appellant had reached maximum medical improvement.
Dr. Becan relied on Table 15-214 of the sixth edition of the A.M.A., Guides to evaluate
appellant’s left wrist, finding a 17 percent impairment of the left upper extremity due to a class
for diagnosis (CDX) of a class 2 median nerve entrapment below the left mid-forearm with
sensory deficit. Referring to Table 15-7,5 Dr. Becan assessed a grade modifier for Functional
History (GMFH) of 1 for the QuickDASH score of 36 percent. He found no grade modifier for
Physical Examination (GMPE) findings. Dr. Becan found a grade modifier for Clinical Studies
(GMCS) of 1 due to February 11, 2009 x-rays showing osteoarthritis in the left hand and wrist.
Using the net adjustment formula of (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), or
(1-1) + (0-1) + (1-1), he arrived at a net adjustment of 2. Dr. Becan determined that this raised
the CDX to equal a 14 percent impairment of the left upper extremity.

2

February 11, 2009 x-rays of the left wrist and hand showed mild osteoarthritic changes without dislocation or
fracture.
3

In a June 22, 2009 report, Dr. Alexander M. Marcus, an attending Board-certified orthopedic surgery
specializing in surgery of the hand, noted appellant’s complaints of pain and paresthesias in the left hand with some
contraction of the middle finger. On examination, he observed diminished two-point discrimination testing.
4

Table 15-21, page 438 of the sixth edition of the A.M.A., Guides is entitled “Peripheral Nerve Impairment:
Upper Extremity Impairments.”
5

Table 15-7, page 406 of the sixth edition of the A.M.A., Guides is entitled “Adjustment Grid -- Summary.”

2

In a June 4, 2010 report, an OWCP medical adviser reviewed the medical record and
statement of accepted facts and stated that Dr. Becan utilized inappropriate portions of the
A.M.A., Guides. The medical adviser explained that the appropriate diagnosis was “an acute
carpal tunnel syndrome -- crush injury of the median nerve in the carpal tunnel” based on
Dr. Ashinoff’s February 12, 2009 surgical report. Therefore, Dr. Becan should have based the
CDX on Table 15-236 regarding compression neuropathy and not Table 15-21 which graded
peripheral nerve impairments. The medical adviser found a GMFH of 1, a GMPE of zero and a
GMCS of 1. Using the net adjustment formula of (GMFH - CDX) + (GMPE - CDX) + (GMCS CDX), or 1+ 0 + 1 = 2, he derived a grade modifier of 1, less than the default of 2 for acute
carpal tunnel syndrome. Therefore, appellant had a two percent impairment of the left upper
extremity.
By decision dated October 15, 2010, OWCP granted appellant a schedule award for a two
percent impairment of the left upper extremity.
In an October 19, 2010 letter, appellant requested a hearing, held on February 15, 2011.
At the hearing, he described difficulties with activities of daily living such as trimming his
fingernails and putting on his socks. Counsel contended that appellant was entitled to a 14
percent impairment rating as OWCP should have allowed the more favorable rating method to
base the schedule award. Alternatively, he asserted a conflict of medical opinion arose between
Dr. Becan and OWCP’s medical adviser.
By decision dated and finalized April 14, 2011, an OWCP hearing representative
affirmed the October 5, 2010 schedule award determination. The hearing representative
accorded the weight of the medical evidence to OWCP’s medical adviser, who explained why
Table 15-23 was the appropriate grading scheme for appellant’s impairment, as opposed to
Dr. Becan’s use of Table 15-21. The hearing representative noted that appellant was not entitled
to an impairment rating based on an inappropriate grading method.
LEGAL PRECEDENT
The schedule award provisions of FECA7 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. FECA, however,
does not specify the manner in which the percentage loss of a member shall be determined. The
method used in making such determination is a mater which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The A.M.A.,
Guides has been adopted by OWCP as a standard for evaluation of schedule losses and the Board

6

Table 15-23, page 449 of the sixth edition of the A.M.A., Guides is entitled “Entrapment/Compression
Neuropathy Impairment.”
7

5 U.S.C. § 8107.

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has concurred in such adoption.8 For schedule awards after May 1, 2009, the impairment is
evaluated under the sixth edition of the A.M.A., Guides, published in 2008.9
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).10 Under the sixth edition, the evaluator identifies the impairment class CDX,
which is then adjusted by grade modifiers based on GMFH, GMPE and GMCS.11 The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).
ANALYSIS
OWCP accepted that appellant sustained a left median nerve crush injury on
February 11, 2009. Dr. Ashinoff, an attending Board-certified plastic and reconstructive
surgeon, performed a left median nerve decompression on February 12, 2010. Appellant claimed
a schedule award on June 10, 2010. On February 24, 2010 counsel obtained an impairment
rating from Dr. Becan, an orthopedic surgeon, who found a 14 percent impairment of the left
upper extremity due to sensory impairment and osteoarthritis.
An OWCP medical adviser reviewed Dr. Becan’s report on June 24, 2010 and disagreed
with his impairment rating. The medical adviser explained that Dr. Ashinoff diagnosed an acute
median nerve crush injury of the left distal forearm, demonstrable during the February 12, 2009
surgery. However, Dr. Becan based his impairment rating on peripheral neuropathy, a condition
not supported by the medical evidence. The Board finds that OWCP’s medical adviser properly
utilized the A.M.A., Guides in rating a two percent impairment of the left arm. He explained
why Dr. Ashinoff’s report supported a CDX impairment based on a crush injury. The adviser
then used Dr. Becan’s clinical findings to determine a GMFH of 1, GMPE of 0 and a GMCS of
1. Using the net adjustment formula of (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX),
OWCP’s medical adviser found a grade modifier of 1, less than the default grade of 2. He
therefore calculated a two percent impairment of the left upper extremity.
On appeal, counsel contends that OWCP chose the less favorable of two rating methods
to calculate appellant’s schedule award. As noted, Dr. Becan’s impairment rating of 14 percent
was based on an incorrect diagnosis, whereas the medical adviser used the appropriate rating
scheme based on Dr. Ashinoff’s surgical report. For this reason there is no conflict between
Dr. Becan and the medical adviser regarding the percentage of permanent impairment.

8

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
10

A.M.A., Guides 3 (6th ed. 2008), section 1.3, “The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.”
11

A.M.A., Guides 494-531 (6th ed. 2008).

4

The Board finds that the medical adviser applied the appropriate portions of the A.M.A.,
Guides to the clinical findings of record. Therefore, OWCP’s April 14, 2011 decision affirming
the October 15, 2010 schedule award is proper under the law and facts of this case.
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.
CONCLUSION
The Board finds that appellant has not established that he sustained more than a two
percent impairment of the left upper extremity, for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 14, 2011 is affirmed.
Issued: March 20, 2012
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.O., Appellant
and
DEPARTMENT OF THE ARMY, CORPS OF
ENGINEERS, Portland, OR, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-1809
Issued: September 11, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 26, 2013 appellant filed a timely appeal from the February 1, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP) finding that she forfeited her right to
compensation thus creating an overpayment of compensation. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly found that appellant forfeited her right to
compensation for intermittent periods between November 6, 1996 and December 14, 2009;
(2) whether appellant received an overpayment in the amount of $362,751.51; and (3) whether
she was at fault in the creation of the overpayment, thereby precluding waiver of recovery.
On appeal appellant challenges the finding of forfeiture and overpayment due to her
alleged failure to report earnings from the rental properties appellant owned with her husband.
1

5 U.S.C. § 8101 et seq.

She contends that her involvement in the rental properties was passive; that she was denied due
process in that she was not provided an opportunity to confront her accuser; that the U.S.
Attorney’s office declined to prosecute her for not reporting income; and that the investigator’s
report was deficient.2
FACTUAL HISTORY
This case has previously been before the Board. The facts as set forth in the Board’s
prior decision are hereby incorporated by reference.3
Between February 6, 1998 and December 14, 2009 appellant completed numerous
EN1032 forms containing extensive language advising her of what types of employment
activities and earnings she was required to report for each 15-month period prior to the time she
signed each form.4 The EN1032 forms instructed appellant to report all employment for which
she received a salary, wages, income, sales commissions, piecework or payment of any kind.
She was directed to report all self-employment or involvement in business enterprises, including
(but not limited to) farming, sales work, operating a business and providing services in exchange
of money, goods or other services. The kind of services that appellant was required to report
included such activities as carpentry, mechanical work, painting, contracting, child care, keeping
books and records, odd jobs and managing and overseeing a business of any kind, including a
family business. Such activities had to be reported even if they were part time or intermittent.
The EN1032 forms also instructed appellant to report any work or ownership interest in any
business enterprise, even if the business lost money or its profits or income were reinvested or
paid to others. If she performed any duties in a business enterprise for which she was not paid,
she had to show as the rate of pay what it would have cost the employer or organization to hire
someone to perform the work or duties she did, even if the work was for her or a family member
or relative. The forms contained certification clauses which informed appellant of the
consequences of not accurately reporting her employment activities, such as being subjected to
criminal penalties and losing the right to receive workers’ compensation.
On March 21, 2011 OWCP received an investigation report conducted for the employing
establishment. Special Agent Derek Lindbom conducted an interview on October 14, 2010 with
appellant. He noted that appellant acknowledged that she was in receipt of compensation
benefits following an employment injury and acknowledged that “she and her husband have
2

Appellant filed multiple pleadings and letters in this appeal. In a March 15, 2014 letter, she requested oral
argument; however, her request was made more than 60 days after she filed her appeal on July 26, 2013. Therefore,
her request for oral argument was untimely. See 20 C.F.R. § 501.5(b). Appellant also submitted new evidence on
appeal. The Board may not consider new evidence on appeal as its review is limited to the evidence that was before
OWCP at the time of its final decision. See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57 ECAB 126 (2005).
3

Docket No. 11-1607 (issued April 23, 2012). Appellant has an accepted occupational disease claim from 1991
for cervical strain, bilateral carpal tunnel syndrome and cervical spondylosis with myelopathy. On August 21, 2006
OWCP found that appellant had the capacity to earn wages as an information clerk and reduced her monetary
compensation. This determination was affirmed by the Board in the prior appeal.
4

Appellant completed EN1032 forms on February 6 and December 10, 1998; January 6 and December 18, 2000;
May 10 and December 16, 2002; December 12, 2004; December 13, 2005; December 8, 2006; February 7, 2008;
January 17 and December 14, 2009.

2

multiple rental properties in which they receive rental income.” Special Agent Lindbom noted
that appellant stated that she never recorded her income from her rental property on her annual
EN1032 form because it was her understanding that income from rental property was not
considered employment. He noted that when asked about her involvement with the rental
properties, appellant stated that she worked approximately two to three hours a week in matters
concerning ensuring receipt of rental payments, balancing business bank accounts, lease
preparation, placing ads for new tenants, addressing tenant concerns, coordinating major repairs
to rental property and end of the year tax preparation. Appellant estimated that it would
probably cost approximately $10.00 to $12.00 per hour to complete the general type of
bookkeeping she performed for the rental property. The investigation interview report was not
signed by appellant.
Special Agent Lindbom submitted evidence including court documents, deeds and
correspondence to reflect that appellant acted to collect rent, utility bills and evict tenants. In an
April 6, 2010 report, he stated that property records from Oregon and Georgia indicated that
appellant owned approximately 11 pieces of rental property with her husband, with several
pieces of property containing multiple dwelling units on individual lots. The property records
indicated that she received rental income on multiple properties.
In an investigation report dated March 24, 2010, Agent Jim Sills of the employing
establishment stated that appellant and her husband owned two upholstery businesses in Oregon
and numerous properties. He specifically noted that they owned four properties in Cartersvile,
Georgia; one in White, Georgia; and three in Oregon City, Oregon; and one in Milwaukie,
Oregon. Agent Sills drove by one of the properties and it had a “for rent” sign with appellant’s
telephone number. He stated that appellant sold properties located in Portland, Oregon in
January 2002, September 2005 and April 2007. Agent Sills also noted that he conducted
surveillance on her home and that he observed appellant travel to Lowe’s Home Improvement
store on July 6, 2009. He noted that on July 7, 2009 a construction crew performed work on her
residence. Agent Sills interviewed one of appellant’s tenants, Diana Taylor, on August 7, 2009.
Ms. Taylor advised that she had been renting property from appellant for approximately 11 years
and that appellant did work on the property, including painting, moving a dishwasher, putting
some electrical wiring on the stove and spraying mold killer in the attic. He interviewed another
tenant, Michael James Bush, on February 24, 2010, who indicated that he had lived in the
residence between 8 and 10 years and that he paid rent deposited into an account belonging to
appellant. Another tenant, Kristi Toner, interviewed on the same date, had lived in her residence
since November 2009 and paid rent to appellant. She did not observe appellant do any physical
labor on the residence, but did state that appellant had to fly to Portland from Georgia several
times to deal with a lawsuit between her and the former tenant. None of the interview reports
were signed by the individuals interviewed by Agent Sills.
In an October 19, 2010 letter to OWCP, appellant noted that she was not aware that she
needed to claim her two-hour involvement in paperwork or periodically talking with tenants
regarding the rental properties on her Form EN1032. She stated that most of the rents were
automatically deposited in the bank account belonging to herself and her husband. Appellant
noted that they sold the Ogden property in 2007 and that her Oregon properties were managed by
her brother and sister with the exception of a house where her son resided. With regard to the
property in Georgia, she stated that Johnny Dover collected most of the rents and did

3

maintenance, unless it was electrical or heating and air, in which case Perry Redd performed the
work. Appellant noted that in 2008 and 2009, their passive income was a loss of $9,619.00 for
2008 and $13,293.00 for 2009. She stated that, although her name was on the properties, her
husband’s income made it possible for them to purchase the majority of the properties and
maintain them. In a January 26, 2011 letter, appellant reiterated that her family in Oregon dealt
with the Oregon properties and that bills were either sent to her and her husband directly or they
were provided credit card information over the phone. She noted that her husband performed the
major repairs when necessary. Appellant and her husband jointly reviewed the rental applicants
and that “Johnny” made necessary calls verifying employment and tenant selection. She stated
that this year she spent at most four hours on the property.
In a decision dated May 26, 2011, OWCP determined that appellant had willfully and
knowingly omitted and/or understated her earnings on her EN1032 forms covering the period
November 7, 2007 through January 17, 2009. Therefore she forfeited all compensation for this
period which created an overpayment. In another decision dated May 26, 2011, OWCP made a
preliminary determination that appellant was overpaid in the amount of $27,731.25 because she
made false statements on her EN1032 forms covering the period November 7, 2007 through
January 17, 2009. OWCP made a preliminary finding that appellant was at fault in the creation
of the overpayment and was not eligible for waiver.
By letter dated June 20, 2011, appellant requested a prerecoupment hearing before an
OWCP hearing representative. She noted that she disagreed with the fact and amount of the
overpayment and finding of fault.
By decision dated September 8, 2011, an OWCP hearing representative set aside the
May 26, 2011 decisions. She remanded the case for a complete review of investigative evidence
of record prior to 2007 and a determination as to whether it supported that appellant failed to
report self-employment or work duties as early as 1999. The hearing representative further noted
that if forfeiture was found for these periods, then a greater overpayment would exist.
In a September 20, 2011 letter, appellant argued that an overpayment was not created
because the IRS did not require owners of rental property to pay self-employment tax, that she
unintentionally did not report the two hours of paperwork she performed on her rental properties
and that her husband only owned one upholstery shop and she did not assist him with that
business.
Further investigative reports and exhibits were submitted. In notes from a February 3,
2006 interview of appellant, Agent Gregory R. Michigan reported that appellant and her husband
owned most of their properties prior to her injury and that the tenants in her rental property
located next to the upholstery shop did not pay rent because they looked after the property. He
noted that appellant owned four properties in Oregon and three in Georgia, but that their
daughter managed the properties and collected the rent. Agent Michigan indicated that appellant
spends approximately two hours a month working on paperwork, her husband handled all the
repairs and that an accountant did the tax work. When there was a turnover in tenants,
appellant’s son or husband performed clean-up work and her niece was paid to paint. When

4

there was an opening, appellant reviewed the applications in a single day, but there was not much
turnover.5 Again, neither appellant nor her husband signed the interview report.
On March 1, 2006, Mark Mansfield, an investigator for the employing establishment,
noted contact with OWCP concerning the information regarding appellant and the interview in
which she admitted working approximately two hours a month on paperwork related to the rental
properties. The investigator was apprised by OWCP that while appellant should have disclosed
her activity, her admission would not have changed her compensation benefits had she reported
it on her EN1032 forms. The income received by appellant from the rental properties was
viewed as investment income.
On April 7, 2006 Mr. Mansfield contacted the Office of the Inspector General with the
Department of Labor in Seattle, who had coordinated with the Assistant U.S. Attorney’s office in
Portland, Oregon. It was noted that the U.S. Attorney declined to prosecute appellant based on a
lack of physical evidence to warrant an indictment. The U.S. Attorney made reference to
OWCP’s decision not to reduce appellant’s compensation based on her admission that she
worked approximately two hours a month on paperwork related to the rental properties. Further,
the investigative findings were past the statute of limitations and could not be considered for
criminal charges.
In an October 3, 2011 letter, appellant’s husband stated that appellant did not help him
with his upholstery business. He also stated his understanding that their real estate was
considered investment income and not self-employment income.
By decision dated June 27, 2012, OWCP advised appellant that she forfeited
compensation for the period November 6, 1996 to December 14, 2009 in the amount of
$362,751.51. In a separate decision dated June 27, 2012, it determined that an overpayment was
created in the amount of $362,751.51 because she forfeited compensation for the following
periods: November 6, 1996 to December 18, 2000; February 10, 2001 to December 16, 2002;
September 12, 2003 to February 7, 2008; and September 14, 2008 to December 14, 2009.
OWCP also made a preliminary determination that appellant was at fault in the creation of the
overpayment.
On July 19, 2012 appellant requested a prerecoupment hearing. She disagreed with the
fact and amount of the overpayment and finding of fault.
At the hearing held on October 3, 2012, appellant’s counsel argued that the overpayment
findings should have been handled separately for each period of forfeiture, that the investigative
reports were deficient, that OWCP should have provided more information to appellant
concerning the reporting requirements and that her involvement with the rental properties was
passive and not active.

5

In an October 28, 2009 letter to appellant, the interim electrical inspector supervisor for Oregon City, Oregon
discussed electrical work on a house in Milwaukie, Oregon. In another October 28, 2009 letter, a Plans Examiner
for Oregon City noted that a plumbing violation complaint was closed as there was no evidence of sewage leakage
or new plumbing work.

5

In an October 29, 2012 letter to OWCP, the employing establishment argued that
appellant admitted to active work in her husband’s upholstery business and the management of
their rental properties. It contended that she failed to report her activities on the EN1032 forms
submitted.6
In a brief dated December 17, 2012, appellant’s counsel argued that the forfeiture
decision and the overpayment decision should be reversed. He contended that three separate
attempts at criminal prosecution had been refused; that the videotape evidence did not support
the statement by the investigators; that the agent’s reports distorted the evidence; that appellant
reasonably concluded that her involvement with the rental properties was passive; that her
involvement with the rental properties was considerably less than 20 hours a month; and that any
error was perpetuated by OWCP as it knew of appellant’s investment properties but failed to
follow up for over a decade. Counsel concluded that OWCP has not met its burden of proof.
By decision dated February 1, 2013, an OWCP hearing representative affirmed the
forfeiture and overpayment decisions of June 27, 2012.
LEGAL PRECEDENT -- ISSUE 1
Section 8106(b) of FECA7 provides in pertinent part:
“The Secretary of Labor may require a partially disabled employee to report his
earnings from employment or self-employment, by affidavit or otherwise, in the
manner and at the times the secretary specifies.... An employee who-(1) fails to make an affidavit or report when required; or
(2) knowingly omits or understates any part of his earnings;
forfeits his right to compensation with respect to any period for which the
affidavit or report was required. Compensation forfeited under this subsection, if
already paid, shall be recovered by a deduction from the compensation

6

By letter dated November 16, 2012, the employing establishment forwarded to OWCP physical evidence to
support the investigative reports, which included videotapes and photographs.
7

5 U.S.C. § 8106(b).

6

payable to the employee or otherwise recovered under section 8129 of this title,
unless recovery is waived under that section.”8
Section 10.5(g) of OWCP’s implementing federal regulations define earnings from
employment or self-employment as follows:
“(1) Gross earnings or wages before any deduction and includes the value of
subsistence, quarters, reimbursed expenses and any other goods or services
received in kind as remuneration; or
“(2) A reasonable estimate of the cost to have someone else perform the duties of
an individual who accepts not remuneration. Neither lack or profits, nor the
characterization of the duties as a hobby, removes an unremunerated individual’s
responsibility to report the estimated cost to have someone else perform his or her
duties.9”
An employee can only be subjected to the forfeiture provision of 5 U.S.C. § 8106(b) if he
knowingly omitted or understated earnings. It is not enough to merely establish that there were
unreported earnings. OWCP procedure manual recognizes that forfeiture is a penalty.10 As a
penalty provision, it must be narrowly construed.11 Under OWCP’s regulations, knowingly is
defined as: with knowledge, consciously, willfully or intentionally.12 To meet this burden,
OWCP is required to examine closely appellant’s activities and statements. OWCP may meet
this burden without an admission by an employee if the circumstances of the case establish that
he failed to reveal fully and truthfully the full extent of his employment activities and earnings.13
The Board has held that OWCP may not base its application of the forfeiture provision
strictly on conclusions drawn in an investigation; rather, the evidence of record must establish
that the claimant had unreported earnings from employment which were knowingly not
reported.14 In FECA Bulletin No. 83-7, OWCP noted that an investigative report showing that a
claimant had unreported earnings from employment must be used in conjunction with other

8

While section 8106(b) refer only to partially disabled employees, the Board has held that the test for
determining partial disability is whether, for the period under consideration, the employee was in fact either totally
disabled or merely partially disabled and not whether he received compensation for that period for total or partial
loss of wage-earning capacity. Ronald H. Ripple, 24 ECAB 254, 260 (1973). The Board explained that a totally
disabled employee normally would not have any employment earnings and therefore a statutory provision about
such earnings would be meaningless. Id. at 260.
9

20 C.F.R. §10.5(g).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Forfeiture, Chapter 2.1402.8 (May 2012).

11

See Christine P. Burgess, 43 ECAB 449, 458 (1992).

12

20 C.F.R. § 10.5(n); see Anthony A. Nobile, 44 ECAB 268, 271-73 (1992).

13

Terry A. Geer, 51 ECAB 168 (1999).

14

B.Y., Docket No. 11-1798 (issued July 24, 2012); Louis P. McKenna, Jr., 46 ECAB 328 (1994).

7

evidence of record in order to properly find a forfeiture of compensation.15 FECA Bulletin No.
83-7 was cited in Claudia J. Thibault,16 in support of the finding that the evidence of record was
insufficient to establish that the employee had earnings within the meaning of FECA. In finding
forfeiture, the only document was a memorandum in which a special agent with the employing
establishment’s Office of Inspector General memorialized a telephone interview with a witness
who commented on the employee’s activities. The Board noted that the memorandum was
written by the special agent rather than the person interviewed and found that it was not
sufficient evidence to outweigh the employee’s testimony that she did not have earnings.
ANALYSIS -- ISSUE 1
OWCP determined that appellant forfeited her compensation between November 6, 1996
and December 14, 2009 finding that she knowingly failed to report earnings and employment
activities related to management of rental properties on the EN1032 forms submitted to the
record. The amount of compensation found to be forfeited was $362,751.51, which created an
overpayment of compensation for which she was found at fault.
On appeal, appellant contended that her involvement with the rental properties owned
jointly with her husband was passive. She denied that she was a property manager, noting that
the fact that her name was on several leases established only that she was a landlord with her
husband. Counsel for appellant argued that the forfeiture and overpayment decisions should be
reversed. He noted that criminal prosecution had been refused; that the videotape evidence did
not support work activities; that the investigative reports distorted the evidence; that appellant’s
involvement with the rental properties was passive and considerably less than 20 hours a month;
and that OWCP knew of appellant’s investment properties for over a decade.
The Board has held that OWCP may not base its application of the forfeiture provision
strictly on conclusions drawn from investigation reports. Rather, the evidence of record must
establish that appellant had unreported earnings from employment activities that were knowingly
not reported.17 The Board finds insufficient evidence of record to establish that appellant failed
to report earnings or employment activities on the EN1032 forms she completed such that she
should be subjected to the forfeiture provisions of FECA.
In finding that appellant forfeited compensation, OWCP relied on memoranda of
interviews obtained by special agents of the employing establishment. In the memoranda
memorializing interviews, Special Agent Lindbom noted that he conducted an interview with
appellant on October 14, 2010. He stated that she acknowledged being in receipt of
compensation benefits and that she and her husband owned multiple rental properties in Georgia
and Oregon from which they received rental income. Special Agent Lindbom noted appellant’s
understanding that such income was not considered employment. He listed that she worked
approximately two to three hours a week in ensuring receipt of rents, balancing bank accounts,
15

FECA Bulletin No. 83-7 (issued March 31, 1984).

16

40 ECAB 836, 846 (1989).

17

R.W., Docket No. 09-1607 (issued July 26, 2010).

8

lease preparation, placing ads for tenants and coordinating major repairs. The Board notes that
appellant subsequently disputed this information as inaccurate, stating that she did not work
more than two hours a month. Appellant stated that the rents were automatically deposited to a
joint bank account with her husband, that the Oregon properties were managed by her brother
and sister, with the exception of the house in which her son resided. With regard to the Georgia
properties, she identified two individuals who collected the rents and performed maintenance.
The Board notes that the investigative reports of record by Special Agent Lindbom and
others merely provided summaries of the interviews conducted by the various special agents.
The record does not contain any transcript detailing the questions the investigators asked of
appellant or the tenants of the rental properties or the actual responses made by the interviewees.
There are no individual statements signed by any of the parties questioned with the exception of
appellant and her husband who disagreed with certain aspects of the reports. Agent Sills drove
to certain of the properties and conducted surveillance on appellant’s home. His reports noted
that he observed appellant drive to Home Depot on July 6, 2009, without further information.
On July 7, 2009, he observed a construction crew at her home, but did not observe appellant. His
interviews with various tenants are summarized without any signature by any individual as to the
questions asked or accuracy of the responses made.
In the case of R.W.,18 the Board found that the forfeiture determination by OWCP was
based on memorandum in which a special agent from the employer’s OIG provided summaries
of interviews conducted with the employee and several witnesses. The memorandum did not
delineate the questions asked of the witnesses or contain the actual answers provided. There was
nothing signed by any of the individuals attesting to the accuracy of the information provided.
The Board found that the evidence was not sufficient to support the forfeiture decision. The
facts of this case are substantially similar.
With regard to earlier investigative reports, the Board notes that on February 3, 2006
appellant advised Mr. Michigan that she spent approximately two hours a month on paperwork
related to the rental properties. On March 1, 2006 Mr. Mansfield noted contact with OWCP
concerning this information. He was advised by a representative of OWCP that while appellant
should have noted her activity on the EN1032 forms, her admission would not have changed her
receipt of compensation as the income was viewed as investment income. Mr. Mansfield also
had contact with the U.S. Attorney’s office on April 7, 2006, who declined prosecution of
appellant based on the lack of physical evidence to warrant an indictment. Reference was made
to OWCP’s decision not to reduce appellant’s compensation based on this information. The
record reflects that OWCP was informed as to the nature of appellant’s participation in rental
properties owned with her husband. The Board finds that as in Thibault and R.W., the evidence
of record is not sufficient to support the forfeiture finding in this case. OWCP did not meet its
burden of proof to establish that appellant knowingly omitted earnings or employment activities
so as to forfeit her compensation from November 6, 1996 and December 14, 2009. Based on this
determination, the evidence of record does not support the fact of overpayment. The issue is
rendered moot.

18

Docket No. 09-1607 (issued July 26, 2010).

9

CONCLUSION
The Board finds that OWCP improperly determined that appellant forfeited her right to
compensation from November 6, 1996 and December 14, 2009. For this reason, the fact of
overpayment is not established and moot.
ORDER
IT IS HEREBY ORDERED THAT the February 1, 2013 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: September 11, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees' Compensation Appeals Board

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

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

10