United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
White Plains, NY, Employer
__________________________________________

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

Docket No. 14-306
Issued: July 25, 2014

Case Submitted on the Record

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

JURISDICTION
On November 25, 2013 appellant, through his attorney, filed a timely appeal from an
August 12, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying his claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish that his right knee
condition is causally related to a September 18, 2012 employment incident.
On appeal, counsel contends that OWCP’s decision is contrary to fact and law.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the August 12, 2013 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On September 18, 2012 appellant, then a 50-year-old automotive lead technician, filed a
traumatic injury claim (Form CA-1) alleging that he injured his right knee as a result of stepping
out of a vehicle in the performance of duty that day. He stated that his foot slipped off the front
rail of the lift and he twisted his right knee.
An OWCP Form CA-16, authorization for examination, was issued by the employing
establishment on September 20, 2012. Appellant was authorized to receive treatment at White
Plains Hospital in White Plains, New York. He submitted hospitals records dated September 18,
2012 from White Plains Hospital. Dr. Jeffrey Mayer, a Board-certified emergency medicine
specialist, advised that appellant slipped at work and diagnosed right knee sprain.
A September 18, 2012 x-ray of the right knee revealed a small effusion, degenerative
changes and loose bodies but no sign of fracture, subluxation or bone destruction.
In a November 19, 2012 letter, OWCP notified appellant of the deficiencies of his claim.
It afforded him 30 days to submit additional evidence and respond to its inquiries.
Appellant submitted reports dated September 25, 2008 through December 8, 2012 from
Dr. Daniel Zelazny, a Board-certified orthopedic surgeon. On March 25, 2010 Dr. Zelazny listed
a history that appellant sustained a right knee injury while he was in Nevada. He diagnosed
possible symptomatic medial meniscal tear versus loose body and obtained an x-ray that day,
which showed a possible small anterior loose body. On April 5, 2010 Dr. Zelazny advised that a
March 30, 2010 magnetic resonance imaging (MRI) scan showed a small vertical tear at the
posterior horn of the medial meniscus. Appellant declined arthroscopic surgery until at least the
end of the summer.
In a November 19, 2012 report, Dr. Zelazny indicated that appellant jumped off a truck at
work on September 18, 2012 and landed on his right knee which buckled and cracked. He
diagnosed possible symptomatic right knee medial meniscal tear as well as possible intraarticular loose body and opined that appellant was totally disabled for work. Dr. Zelazny noted
that appellant had a prior history of right knee evaluation over two years prior, when he had an
MRI scan that revealed a small vertical tear of the medial meniscus and some degenerative
changes. He indicated that diagnostic testing of the right knee taken that day revealed medial
joint space narrowing and questionable intra-articular loose body best seen on the lateral view.
On December 4, 2012 Dr. Zelazny diagnosed right knee meniscal tear, degenerative joint disease
and osteochondral injury and recommended a right knee arthroscopy.
An x-ray of the right knee dated November 19, 2012 revealed no acute osseous or
articular abnormality.
A November 23, 2012 MRI scan of the right knee showed a sprain/partial tear of the
anterior cruciate ligament, grade 3 sprain lateral collateral ligament, lateral meniscal tear, fraying
at the posterior horn medial meniscus, osteoarthritis with cartilage abnormality and no obvious
intra-articular loose body.

2

By decision dated January 31, 2013, OWCP denied the claim finding that appellant had
failed to establish fact of injury.
On February 25, 2013 appellant, through his attorney, requested a review of the written
record by an OWCP hearing representative. He submitted a February 18, 2013 report from
Dr. Zelazny who reiterated his diagnoses and indicated that appellant was not unstable from his
partial anterior cruciate ligament (ACL) tear or sprain of his lateral collateral ligament (LCL)
based on his clinical examination. On June 17, 2013 Dr. Zelazny released appellant to light duty
for six hours as of June 19, 2013 with restrictions of no bending, squatting, kicking or lifting
anything heavy over 20 pounds. In a July 11, 2013 report, he stated that appellant presented with
a new issue after his right knee gave way and he fell onto his left knee, which had significant
pain and swelling. On July 25, 2013 Dr. Zelazny noted that appellant was still pending approval
for a planned right knee arthroscopy to address his September 18, 2012 injury. He stated that “it
seems evident that the injury sustained at work on September 18, 2012 resulted in new injuries,
which were not present previously” and could be seen based upon comparison of MRI scans.
By decision dated August 12, 2013, an OWCP hearing representative affirmed the
January 31, 2013 decision. It accepted that appellant sustained the September 18, 2012 incident
but denied the claim on the basis that the medical evidence submitted was not sufficient to
establish a causal relationship between his right knee condition and the September 18, 2012
employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury4 was sustained in the performance of duty, as alleged
and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment

3

See supra note 1.

4

OWCP regulations define a traumatic injury as a condition of the body caused by a specific event or incident or
series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
5

See T.H., 59 ECAB 388 (2008). See also Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB
1143 (1989).

3

incident caused a personal injury. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.7
ANALYSIS
OWCP accepted that the employment incident of September 18, 2012 occurred at the
time, place and in the manner alleged. The issue is whether appellant’s right knee condition
resulted from the September 18, 2012 employment incident. The Board finds that he did not
meet his burden of proof to establish a causal relationship between his knee condition for which
compensation is claimed and the employment incident.
On March 25, 2010 Dr. Zelazny indicated that appellant sustained a right knee injury
while he was vacationing in Nevada. He diagnosed possible symptomatic medial meniscal tear
versus loose body and obtained an x-ray that day, which showed a possible small anterior loose
body. On April 5, 2010 Dr. Zelazny indicated that a March 30, 2010 MRI scan showed a small
vertical tear at the posterior horn of the medial meniscus. Appellant declined arthroscopic
surgery until at least the end of the summer.
On November 19, 2012 Dr. Zelazny obtained a history that appellant jumped off a truck
at work on September 18, 2012 and landed on his right knee which buckled and cracked. He
diagnosed possible symptomatic right knee medial meniscal tear as well as possible intraarticular loose body and opined that appellant was totally disabled for work. Dr. Zelazny noted
that appellant had a right knee evaluation over two years prior, when he had an MRI scan that
revealed a small vertical tear of the medial meniscus and some degenerative changes. He stated
that diagnostic testing of the right knee taken that day revealed medial joint space narrowing and
questionable intra-articular loose body best seen on the lateral view. On December 4, 2012
Dr. Zelazny diagnosed right knee meniscal tear, degenerative joint disease and osteochondral
injury and recommended a right knee arthroscopy. On February 18, 2013 he reiterated his
diagnoses and indicated that appellant was not unstable from his partial ACL tear or sprain of his
LCL based on his clinical examination. On June 17, 2013 Dr. Zelazny released appellant to light
duty for six hours as of June 19, 2013 with restrictions of no bending, squatting, kicking or
lifting anything heavy over 20 pounds. In a July 11, 2013 report, he indicated that appellant
presented with a new issue after his right knee gave way and he fell onto his left knee, which had
significant pain and swelling. On July 25, 2013 Dr. Zelazny indicated that appellant was still
pending approval for a planned right knee arthroscopy to address his September 18, 2012 injury.
He stated that “it seems evident that the injury sustained at work on September 18, 2012 resulted
6

Id. See Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989).

7

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

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in new injuries, which were not present previously” and could be seen based upon comparison of
MRI scans.
The Board finds that Dr. Zelazny failed to provide an adequate opinion explaining how
factors of appellant’s federal employment, such as stepping out of a vehicle at work, caused or
aggravated his right knee condition. Dr. Zelazny noted that appellant’s condition occurred while
he was at work, but such generalized statements do not establish causal relationship because they
merely repeat appellant’s allegations and are unsupported by adequate medical rationale
explaining how his physical activity at work caused or aggravated the diagnosed conditions.8
Further, he failed to provide a narrative in 2012 or 2013 setting forth a full and accurate history
of appellant’s condition, including a comparison of any diagnostic testing obtained after
September 18, 2012 with prior tests. Dr. Zelazny’s opinion does not adequately address how the
September 18, 2012 employment incident contributed to appellant’s preexisting right knee
condition. The Board finds that the reports from him are insufficient to establish that appellant
sustained an employment-related injury.
On September 18, 2012 Dr. Mayer indicated that appellant slipped at work and diagnosed
right knee sprain. He did not provide sufficient medical rationale explaining how appellant’s
condition was caused or aggravated by slipping at work on September 18, 2012. Thus, the Board
finds that appellant did not meet his burden of proof with this submission.
The November 23, 2012 MRI scan and x-rays dated March 25, 2010 and September 18
and November 19, 2012, do not constitute competent medical evidence as they do not contain
rationale by a physician relating appellant’s disability to his employment.9 As such, the Board
finds that appellant did not meet his burden of proof with these submissions.
As appellant has not submitted any rationalized medical evidence to support his
allegation that he sustained an injury causally related to a September 18, 2012 employment
incident, he has failed to meet his burden of proof to establish a claim for compensation.
On appeal, counsel contends that OWCP’s decision is contrary to fact and law. For the
reasons stated above, the Board finds the attorney’s arguments are not substantiated.
The Board notes that the employing establishment issued appellant a CA-16 form on
September 20, 2012 authorizing medical treatment. The Board has held that where an employing
establishment properly executes a CA-16 form, which authorizes medical treatment as a result of
an employee’s claim for an employment-related injury, it creates a contractual obligation, which
does not involve the employee directly, to pay the cost of the examination or treatment regardless
of the action taken on the claim.10 Although OWCP denied appellant’s claim for an injury, it did
8

See K.W., Docket No. 10-98 (issued September 10, 2010).

9

See 5 U.S.C. § 8101(2). Section 8101(2) of FECA provides as follows: “(2) ‘physician’ includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope
of their practice as defined by State law.” See also Paul Foster, 56 ECAB 208, 212 n.12 (2004); Joseph N. Fassi,
42 ECAB 677 (1991); Barbara J. Williams, 40 ECAB 649 (1989).
10

See D.M., Docket No. 13-535 (issued June 6, 2013). See also 20 C.F.R. §§ 10.300, 10.304.

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not address whether he is entitled to reimbursement of medical expenses pursuant to the CA-16
form. Upon return of the case record, OWCP should further address this issue.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his right
knee condition is causally related to a September 18, 2012 employment incident, as alleged. On
return of the record, OWCP should consider the CA-16 form issued in this case.
ORDER
IT IS HEREBY ORDERED THAT the August 12, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 25, 2014
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pahrump, NV, Employer
__________________________________________

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

Docket No. 19-1732
Issued: September 9, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 15, 2019 appellant filed a timely appeal from a July 2, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP).1 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.

1
The Board notes that, following the July 2, 2019 decision, OWCP received additional evidence. 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.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish more than seven
percent permanent impairment of her left upper extremity for which she previously received a
schedule award.
FACTUAL HISTORY
On December 31, 2015 appellant, then a 53-year-old clerk, filed a traumatic injury claim
(Form CA-1) alleging that she sustained a left shoulder injury when carrying a package while in
the performance of duty. OWCP accepted the claim for left rotator cuff tear. On March 3, 2016
appellant underwent OWCP-approved left shoulder arthroscopy for rotator cuff tear, impingement
syndrome, and tear of the labrum. She stopped work from March 3 to 25, 2016 and OWCP paid
her compensation on the supplemental rolls. On December 15, 2016 appellant underwent OWCPapproved arthroscopic left shoulder surgery with subacromial decompression, arthroscopic rotator
cuff repair, and debridement of labrum of left shoulder. OWCP again paid her compensation from
December 15 through 19, 2016 on the supplemental rolls.
On October 17, 2017 OWCP prepared a statement of accepted facts in which it noted that,
in addition to this present claim, appellant had sustained a June 24, 2007 traumatic right shoulder
injury, accepted under OWCP File No. xxxxxx260, for right shoulder impingement and a right
rotator cuff tear.
On October 25, 2017 appellant filed a claim for a schedule award (Form CA-7).
On February 21, 2018 OWCP referred appellant to Dr. Aubrey A. Swartz, a Boardcertified orthopedic surgeon, for a second opinion evaluation regarding the nature and extent of
her permanent impairment of her left upper extremity in accordance with the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).3
In his April 24, 2018 report, Dr. Swartz discussed appellant’s medical history and provided
findings on physical examination. He noted that she sustained a left rotator cuff tear on
December 31, 2005 as a result of a work-related injury, and that she had sustained a right rotator
cuff tear on June 24, 2007 due to another work-related injury. Dr. Swartz noted that range of
motion (ROM) of appellant’s right shoulder and left shoulders were measured in three trials. He
recorded the average measurements and findings regarding ROM of the left shoulder, pursuant to
Table 15-34, page 475 of the A.M.A., Guides, indicating that flexion of 95 degrees equaled three
percent impairment; extension of 50 degrees equaled zero percent impairment; abduction of 90
degrees equaled three percent impairment; adduction of 40 degrees equaled zero percent
impairment; internal rotation of 35 degrees would advance to 40 degrees and equaled four percent
permanent impairment; and external rotation of 95 degrees would advance to 100 degrees and
equaled zero percent impairment. Dr. Swartz combined his findings to equate to 10 percent
permanent impairment. He noted that appellant’s grade modifier functional history (GMFH) was
1 and that her QuickDASH score of 40 confirmed the grade modifier of 1. Thus, Dr. Swartz’ final
3

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

2

rating was 10 percent permanent impairment of the left upper extremity, pursuant to the ROM
methodology and Table 35, page 477 of the A.M.A., Guides. He reported that the diagnosis-based
impairment (DBI) method would utilize an impairment class for rotator cuff injury full-thickness
tear or impingement syndrome. Dr. Swartz explained, however, that while there was residual loss
of function in the left shoulder, the DBI method could not be used as examination findings revealed
“abnormal motion.”
On September 17, 2018 Dr. Herbert White, a Board-certified occupational medicine
specialist serving as a district medical adviser (DMA), reviewed Dr. Swartz’ report and the
medical evidence of record in order to evaluate the nature and extent of appellant’s permanent
partial impairment due to her complete rotator cuff tear or rupture of left shoulder. Utilizing the
DBI method for the diagnosis of full thickness rotator cuff tear, the DMA calculated seven percent
permanent impairment of the left upper extremity. He explained that the class of diagnosis (CDX)
was class 1 for mild objective findings, pursuant to Table 15-5, page 403 of the A.M.A., Guides;
GMFH was 1, for a QuickDASH score of 40 at Table 15-7, page 406; the grade modifier physical
examination (GMPE) was Grade 2 for moderate tenderness and mild ROM decreases pursuant to
Table 15-8, page 408 and Table 15-34, page 475; and the grade modifier clinical studies (GMCS)
was Grade 2 pursuant to Table 15-9, page 410. Dr. White applied the net adjustment formula and
explained that the default impairment at class 1 grade C was five percent pursuant to Table 15-5,
page 402, the net adjustment formula would move the impairment up 2 grades to grade E for seven
percent permanent impairment rating. Then, utilizing the ROM methodology, he calculated six
percent permanent impairment of the left upper extremity. Dr. White explained that he utilized
Table 15-34, page 475 for rating loss of ROM of the left shoulder. He provided ROM findings for
the left and right shoulders and compared the two to find a total of six percent permanent
impairment of the left shoulder. Dr. White noted that flexion of the left shoulder of 95 degrees
equaled three percent impairment; flexion of the right shoulder of 175 degrees equaled zero percent
impairment and; therefore, appellant had a total of three percent impairment due to loss of flexion.
He noted that extension of her left shoulder of 50 degrees equaled zero percent impairment, while
75 degrees of extension of the right shoulder equaled zero percent impairment and; therefore,
appellant had zero percent impairment due to loss of extension. Appellant had 90 degrees of
abduction of the left shoulder for three percent impairment, while she had 170 degrees of abduction
of the right shoulder for zero percent impairment and; therefore, appellant had three percent
impairment due to loss of abduction. She had 35 degrees of internal rotation of the left shoulder
which equaled four percent impairment, while she had 25 degrees of internal rotation of the right
shoulder which equaled four percent impairment; therefore, she had zero percent impairment of
the shoulder for loss of internal rotation. Appellant had 95 degrees of external rotation of the left
shoulder which equaled zero percent impairment, while she had 105 degrees of external rotation
of the right shoulder which equaled zero percent impairment for loss of external rotation. The
DMA concluded that she had a total six percent permanent impairment of the left shoulder under
the ROM methodology. He then noted that the DBI method should be used as it provided the
higher rating percentage of permanent impairment. The DMA also commented on the report from
Dr. Swartz, who he noted had calculated 10 percent permanent impairment rating utilizing the
ROM method. He noted that, while he calculated only six percent permanent impairment, the
values differed because Dr. Swartz had not compared the ROM findings to the unaffected right
shoulder motions. The DMA referenced page 461 of the A.M.A., Guides which provides, “If the
opposite extremity is neither involved nor previously injured, it must be used to define normal for

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that individual; any losses should be made in comparison to the opposite normal extremity.”4 He
concluded that the final impairment rating was seven percent based on the DBI methodology.
On December 6, 2018 OWCP requested Dr. Swartz review the DMA’s September 17,
2018 report which differed from his calculation of permanent impairment. It requested that he
provide a supplemental report with his opinion as to the percentage of appellant’s permanent
impairment. Dr. Swartz did not respond.
By decision dated July 2, 2019, OWCP granted appellant a schedule award for seven
percent permanent impairment of the left upper extremity. The period of award ran from April 24
through September 23, 2018. OWCP found that the DMA determined that Dr. Swartz had
incorrectly applied the A.M.A., Guides to the examination findings. It found, therefore, that the
weight of the medical evidence regarding the percentage of permanent impairment rested with the
DMA, as he had correctly applied the A.M.A., Guides to the examination findings.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body.5 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants.
Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses.6 As May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2009).7
In addressing upper extremity impairments, the sixth edition requires identification of the
impairment CDX condition, which is then adjusted by the GMFH, GMPE, and GMCS.8 The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).9
The A.M.A., Guides also provide that ROM impairment methodology is to be used as a
stand-alone rating for upper extremity impairments when other grids direct its use or when no other
DBI sections are applicable.10 If ROM is used as a stand-alone approach, the total of motion
4

Id.

5

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

6

Id. at § 10.404; L.T., Docket No. 18-1031 (issued March 5, 2019); see also Ronald R. Kraynak, 53 ECAB
130 (2001).
7
See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); id. at Chapter 2.808.5 (March 2017).
8

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

9

Id. at 411.

10

Id. at 461.

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impairment for all units of function must be calculated. All values for the joint are measured and
added.11 Adjustments for functional history may be made if the evaluator determines that the
resulting impairment does not adequately reflect functional loss and functional reports are
determined to be reliable.12
OWCP issued FECA Bulletin No. 17-06 to explain the use of the DBI methodology versus
the ROM methodology for rating of upper extremity impairments.13 Regarding the application of
ROM or DBI impairment methodologies in rating permanent impairment of the upper extremities,
FECA Bulletin No. 17-06 provides in pertinent part:
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.” (Emphasis in the original.)14
The Bulletin further advises:
“If the rating physician provided an assessment using the ROM method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the [claims examiner].”15
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides, with OWCP’s DMA providing rationale for the percentage
of impairment specified.16
ANALYSIS
The Board finds that the case is not in posture for decision.17

11

Id. at 473.

12

Id. at 474.

13

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

14

A.M.A., Guides 477.

15

Supra note 13; V.L., Docket No. 18-0760 (issued November 13, 2018); A.G., Docket No. 18-0329 (issued
July 26, 2018).
16

See supra note 7 at Chapter 2.808.6(f) (March 2017).

17

A.R., Docket No. 19-1284 (issued January 14, 2020); D.B., Docket No. 18-0409 (issued October 28, 2019).

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On April 24, 2018 OWCP referred appellant for a second-opinion evaluation with
Dr. Swartz. Utilizing the ROM method, Dr. Swartz calculated 10 percent permanent impairment
of the left upper extremity.18 He recorded three trials of measurements for both shoulders and then
utilized the average findings for the left shoulder alone to conclude appellant’s 10 percent
permanent impairment of the left shoulder, pursuant to the ROM methodology. Dr. Swartz
determined that appellant’s left shoulder permanent impairment could not be evaluated under the
DBI methodology as she had ROM findings. Consistent with its procedures,19 OWCP referred the
matter to a DMA for an opinion regarding her permanent impairment in accordance with the
A.M.A., Guides. Dr. White, serving as the DMA, reviewed Dr. Swartz’ report and disagreed with
his impairment evaluation. In his September 17, 2018 report, he opined that appellant sustained
six percent permanent impairment of the left upper extremity using the ROM method, stating that
Dr. Swartz failed to compare the left shoulder motion measurements to that of the “unaffected”
right shoulder. Dr. Swartz determined that the DBI method could be used and that it provided the
higher impairment rating at seven percent permanent impairment for a left shoulder rotator cuff
full thickness tear injury.20
The Board finds that the DMA’s report indicates that he does not have a complete and
accurate understanding of appellant’s medical history, as indicated by his impairment evaluation.
Dr. White reported that Dr. Swartz failed to compare left shoulder motion measurements to the
“unaffected” right shoulder which would warrant a lower six percent impairment rating. The DMA
correctly noted that the A.M.A., Guides provide that, if the opposite member is not involved or
previously injured, any losses should be made in comparison to the opposite normal extremity.21
The Board has previously noted that the sixth edition of the A.M.A., Guides emphasizes that both
extremities should be compared. If the contralateral joint is uninjured it may serve as defining
normal for the individual.22 However, the record reflects that appellant’s right shoulder may not
be unaffected as stipulated by the DMA, because she had a prior right shoulder impingement and
rotator cuff tear which was accepted under OWCP File No. xxxxxx260. Dr. White did not explain
that her right shoulder ROM findings were unaffected by her accepted right shoulder impingement
and rotator cuff tear injury and; therefore, the left shoulder ROM should be compared with the
unaffected right shoulder. Without an accurate description of appellant’s medical history, his
report cannot serve as a basis for the schedule award.23
The Board also finds that, while the DMA evaluated appellant’s left shoulder permanent
impairment utilizing both the DBI and ROM methodologies, he did not appropriately explain why
Dr. Swartz should not have ruled out the DBI methodology as a basis for her permanent
impairment rating.
18

A.M.A., Guides 475, Table 15-34.

19

Supra note 16.

20

Supra note 18 at 403, Table 15-5.

21

Id. at 461.

22

See also K.P., Docket No. 13-2079 (issued February 18, 2014).

23

V.H., Docket No. 18-0848 (issued February 25, 2019).

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Once OWCP undertakes development of the record, it must do a complete job in procuring
medical evidence that will resolve the relevant issues in the case.24 While it began to develop the
evidence, it failed to complete its obligation to secure a proper evaluation regarding permanent
impairment of the left shoulder based upon the ROM methodology.25 Therefore, OWCP failed to
resolve the issue in the case.26
The Board finds that further development of the medical evidence is required to determine
the extent of appellant’s permanent impairment for schedule award purposes.27 The Board will
therefore remand the case for another second opinion evaluation. The second opinion physician
should determine whether appellant has loss of ROM of the right shoulder from her accepted
employment injury. If so, the examiner should obtain ROM findings based upon three ROM trials
of just the left shoulder. If appellant has no loss of ROM of the right shoulder from the accepted
employment injury, the second opinion examiner should provide ROM findings comparing the
ROM loss of the left shoulder to the right shoulder. The second opinion physician should also
determine appellant’s entitlement to a schedule award utilizing the DBI methodology. OWCP
should thereafter refer the record to a new DMA for review. Following such further development
as deemed necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

24

The Board notes that proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence to see that justice is done. See E.W., Docket No. 17-0707 (issued
September 18, 2017).
25

B.B., Docket No. 17-1949 (issued October 16, 2018).

26

See X.Y., Docket No. 19-1290 (issued January 24, 2020); K.G., Docket No. 17-0821 (issued May 9, 2018).

27

J.M., Docket No. 19-0114 (issued June 12, 2019).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs
decision dated July 2, 2019 is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: September 9, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
U.S. POSTAL SERVICE, FLORISSANT MAIN
POST OFFICE, Florissant, MO, Employer
__________________________________________

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

Docket No. 21-1270
Issued: March 21, 2022

Case Submitted on the Record

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

JURISDICTION
On August 18, 2021 appellant filed a timely appeal from a July 15, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish disability from work
for the period May 3 through August 30, 2020, causally related to his accepted December 12, 2019
employment injury.
FACTUAL HISTORY
On December 16, 2019 appellant, then a 62-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 12, 2019 he injured his right shoulder and lower
1

5 U.S.C. § 8101 et seq.

back when he picked up a parcel while in the performance of duty. He stopped work on
December 17, 2019 and returned on December 24, 2019.
By decision dated September 8, 2020, OWCP accepted the condition of right rotator cuff
capsule sprain, initial encounter.
In support of his disability claim, appellant submitted a June 6, 2020 report by
Dr. Jonathan L. Ben-Zev, an orthopedic surgeon, who diagnosed right shoulder pain, unspecified
chronicity, and ordered diagnostic testing.
In a June 8, 2020 right shoulder magnetic resonance imaging (MRI) scan report,
Dr. Stephen B. Huebner, a Board-certified diagnostic radiologist, provided an impression of highgrade supraspinatus tendon tear, including at least two areas of full-thickness tear and mild muscle
atrophy, moderate infraspinatus tendinosis and possible small partial thickness tear and moderate
subscapularis tendinosis, moderate acromioclavicular (AC) osteoarthritis, and minimal
glenohumeral arthritis and small tear of the superior glenoid labrum.
An August 31, 2020 operative report by Dr. Scott G. Kaar, an attending Board-certified
orthopedic surgeon, provided preoperative and postoperative diagnoses of right shoulder rota tor
cuff tear involving the supraspinatus tendons, and AC joint arthritis. Dr. Kaar performed right
shoulder arthroscopic rotator cuff repair, subacromial decompression, and distal clavicle excision.
In progress notes dated September 15 and October 13, 2020, he provided an impression that
appellant was six weeks status post right shoulder arthroscopic rotator cuff repair, subacromial
decompression, and distal clavicle excision. Dr. Kaar noted appellant’s physical restrictions.
Appellant filed a claim for compensation (Form CA-7) for disability from work for the
period May 3, 2020 and continuing.
OWCP, in a November 30, 2020 development letter, informed appellant of the deficiencies
in his claim and requested that he submit medical evidence to support his reported surgery and
disability during the period claimed causally related to the accepted December 12, 2019
employment injury. It afforded him 30 days to respond.
In response, appellant submitted an undated statement in which he described his
December 12, 2019 employment injury and resultant medical treatment. He also submitted
medical evidence.
In progress notes dated June 11, 2020, Dr. Jeffrey C. Faron, a Board-certified internist,
noted appellant’s left shoulder pain. He indicated that there were no contraindications for
appellant’s planned right shoulder surgery.
An additional progress note dated August 11, 2020 and letters dated September 15,
October 16, and December 11, 2020 by Dr. Kaar noted an impression of full-thickness
supraspinatus tear with, mild retraction, mild supraspinatus atrophy and partial thickness tearing
involving the supraspinatus, subscapularis tendinosis, ﬂuid along the biceps, and moderate AC
joint arthrosis. Additionally, he noted that appellant was doing well status post appellant’s
August 31, 2020 arthroscopic right shoulder surgery. In the October 16, 2020 letter, Dr. Kaar

2

advised that appellant was unable to work beginning March 26, 2020 and continuing following his
August 31, 2020 surgery.
OWCP subsequently received additional medical evidence. In letters dated October 13 and
November 24, 2020 and January 5, 2021, Dr. Kaar reiterated that appellant was status post
arthroscopic right shoulder surgery and was “doing well.” In the January 5, 2021 letter, he advised
that appellant would remain off work until his next visit. Dr. Kaar, in a March 5, 2021 letter,
opined that appellant’s full-thickness rotator cuff tear and AC joint arthrosis and resultant
August 31, 2020 surgery were directly related to appellant’s December 2019 employment injury.
In a March 11, 2021 letter, Dr. Karr restated his opinion that appellant’s right rotator cuff
and bicep tear and resultant August 31, 2020 surgical repair was due to his December 12, 2019
employment injury. He advised that appellant could return to full-duty work without restrictions
as of March 9, 2021.
OWCP, by decision dated July 15, 2021, denied appellant’s claim for disability from work
for the period May 3 through August 30, 2020 because the medical evidence of record was
insufficient to establish disability.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.3 For each period of
disability claimed, the employee has the burden of proof to establish that he or she was disabled
from work as a result of the accepted employment injury.4 Whether a particular injury causes an
employee to become disabled from work, and the duration of that disability, are medical issues
that must be proven by a preponderance of probative and reliable medical opinion evidence.5
Under FECA, the term disability means an incapacity because of an employment injury, to
earn the wages the employee was receiving at the time of the injury.6 When, however, the medical
evidence establishes that the residuals or sequelae of an employment injury are such that, from a

2

Supra note 1.

3

See D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August 23, 2019);
C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40
ECAB 1143 (1989).
4

See L.F., Docket No. 19-0324 (issued January 2, 2020); T.L., Docket No. 18-0934 (issued May 8, 2019);
Fereidoon Kharabi, 52 ECAB 291, 293 (2001).
5

See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).

6

Id. at § 10.5(f); see e.g., G.T., 18-1369 (issued March 13, 2019); Cheryl L. Decavitch, 50 ECAB 397 (1999).

3

medical standpoint, prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for any loss of wages.7
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such causal relationship.8 The opinion of the physician must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment incident identified
by the employee.9
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow an employee to self-certify his or her disability and
entitlement to compensation. 10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish disability from
work for the period May 3 through August 30, 2020, causally related to his accepted December 12,
2019 employment injury.
In support of his disability claim, appellant submitted progress notes and letters from
Dr. Kaar. Dr. Kaar’s August 11, 2020 progress note provided an impression of full-thickness
supraspinatus tear with, mild retraction, mild supraspinatus atrophy and partial thickness tearing
involving the supraspinatus, subscapularis tendinosis’ ﬂuid along the biceps, and moderate AC
joint arthrosis. He also provided an impression that appellant was doing well status post
arthroscopic right shoulder surgery. However, Dr. Kaar offered no opinion regarding appellant’s
disability status during the period May 3 through August 30, 2020. The Board has held that
medical evidence that does not provide an opinion as to whether a period of disability is due to an
accepted employment condition is insufficient to meet a claimant’s burden of proof. 11 In an
October 16, 2020 letter, Dr. Kaar noted appellant’s inability to work commencing March 26, 2020
and continuing following his authorized August 31, 2020 surgery. While he noted appellant’s
inability to work on the claimed dates, he did not provide any medical reasoning to support his
opinion on disability nor did he attribute appellant’s disability to the accepted December 12, 2019

7

G.T., id.; Merle J. Marceau, 53 ECAB 197 (2001).

8

See S.J., Docket No. 17-0828 (issued December 20, 2017); Kathryn E. DeMarsh, 56 ECAB 677 (2005).

9

C.B., Docket No. 18-0633 (issued November 16, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler,
45 ECAB 365 (1994).
10

See S.G., Docket No. 18-1076 (issued April 11, 2019); William A. Archer, 55 ECAB 674 (2004); Fereidoon
Kharabi, supra note 4.
11

See B.M., Docket No. 20-0826 (issued May 10, 2021); Y.D., Docket No. 20-0097 (issued August 25, 2020); M.A.,
Docket No. 19-1119 (issued November 25, 2019); S.I., Docket No. 18-1582 (issued June 20, 2019).

4

employment injury. 12 Dr. Kaar’s remaining letters dated September 15, 2020 through March 5,
2021 do not address appellant’s inability to work on the claimed dates. 13 For these reasons, the
Board finds that his letters and progress note are insufficient to establish appellant’s disability
claim.
Appellant also submitted progress notes by Dr. Faron dated June 11, 2020. The Board
finds that Dr. Faron’s progress notes are of no probative value as they did not address appellant’s
disability status and are therefore insufficient to establish the disability claim. 14
Likewise, Dr. Ben-Zev’s June 6, 2020 report diagnosed right shoulder pain, unspecified
chronicity, but does not offer an opinion regarding appellant’s disability status during the claimed
period.15 For this reason, the Board finds that this evidence from Dr. Ben-Zev is insufficient to
establish appellant’s disability claim.
The record also contains diagnostic reports. However, the Board has long held, however,
that diagnostic studies, standing alone, lack probative value as they do not address whether the
employment injury caused any of the diagnosed conditions or associated disability. 16 For this
reason, the Board finds that the diagnostic reports of record are insufficient to establish appellant’s
disability claim.
For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work during the claimed period as a result of the accepted
employment injury. 17 Because appellant has not submitted rationalized medical opinion evidence
sufficient to establish employment-related total disability during the claimed period due to his
accepted condition, the Board finds that he has not met his burden of proof to establish his claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R.
§§ 10.605 through 10.607.

12

M.A., Docket No. 20-0033 (issued May 11, 2020); F.S., Docket No. 18-0098 (issued August 13, 2018); P.W.,
Docket No. 17-0154 (issued June 9, 2017).
13
M.A., id.; C.S., Docket No. 19-1279 (issued December 30, 2019); L.B., Docket No. 18-0533 (issued August 27,
2018); D.K., Docket No. 17-1549 (issued July 6, 2018); see also William A. Archer, supra note 10 (the Board will not
require OWCP to pay compensation for disability in the absence of medical evidence directly addressing the specific
dates of claimed disability).
14
S.S., Docket No. 21-0763 (issued November 12, 2021); M.V., Docket No. 20-0872 (issued January 27, 2020);
P.R., Docket No. 20-0596 (issued October 6, 2020); M.L., Docket No. 18-1058 (issued November 21, 2019); D.J.,
Docket No. 18-0200 (issued August 12, 2019).
15

Supra note 13.

16

See T.W., Docket No. 20-1669 (issued May 6, 2021); J.S., Docket No. 17-1039 (issued October 6, 2017).

17

Supra note 5.

5

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish disability from
work for the period May 3 through August 30, 2020, causally related to his accepted December 12,
2019 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the July 15, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 21, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Louisville, KY, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1553
Issued: June 27, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 10, 2017 appellant, through counsel, filed a timely appeal from a May 24, 2017
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.

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.

ISSUE
The issue is whether appellant has met her burden of proof to establish an injury causally
related to the accepted factors of her federal employment.
FACTUAL HISTORY
On June 28, 2016 appellant, then a 50-year-old rural carrier, filed an occupational disease
claim (Form CA-2) alleging a muscle strain resulting from the performance of duty. She did not
stop work.
In an undated supplemental statement, appellant related that she started working for the
employing establishment in February 1999 as a substitute for one route with a Long Life Vehicle
(LLV), right-hand drive. She received another route four months later, which was a left-hand
drive. Appellant explained that she was five foot, three inches tall, so she had to reach across the
vehicle to deliver mail. She noted that in 2003 she began to experience hip and back pain.
Appellant indicated that she eventually was given a right-hand drive vehicle, but the pain did not
go away. She reported that in 2004, her chiropractor informed her that her hip bone was being
pulled out of the socket, which was what caused her hip pain. Appellant related that in 2005, she
began to have serious problems with her back and shoulders. She noted that she started to work
full time in 2008. Appellant explained that it took her approximately four hours of sitting to deliver
her route, which caused severe hip pain. She reported that she also stood and cased mail for 1½
to 2 hours, which caused a burning sensation in her back.
Appellant received medical treatment from Dr. Richard Hefner, a Board-certified family
practitioner. Dr. Hefner indicated in a June 15, 2016 examination note that appellant was
diagnosed with left hip pain, right shoulder pain, left piriformis syndrome, and muscle strain of
the left gluteal region.
In a June 22, 2016 initial physical therapy evaluation report, Gary Costelle, a physical
therapist, related appellant’s complaints of left hip pain for the past 10 years. He noted that she
worked as a mail carrier who constantly shifted her body weight when leaning in and out of her
mail truck at work.
OWCP received handwritten chiropractic notes dated June 24 and 29, 2016.
Appellant was also treated by Amy Adkission, a certified physician assistant. In
handwritten examination notes dated June 27 and 30, 2016, Ms. Adkission related that appellant
complained of pain to her left hip, between shoulders, and right arm. She indicated that appellant
had worked at her current job since 1999. Ms. Adkission noted diagnoses of chronic left hip pain,
right shoulder pain, thoracic spine pain, and suspected right carpal tunnel syndrome. The
examination note indicated that appellant could return to regular duty without restrictions on
June 27, 2016.
In a July 5, 2016 letter, the employing establishment controverted appellant’s claim. It
reported that she did not provide any mechanism of injury to relate to performance of duty or

2

rationalized medical evidence to demonstrate causal relationship. The employing establishment
further noted that appellant complained of chronic pain, which is not a compensable diagnosis.
OWCP advised appellant in a July 6, 2016 letter that the evidence submitted was
insufficient to establish her claim. It requested that she respond to the attached development
questionnaire in order to substantiate the factual elements of her claim and that she provide
additional medical evidence to establish that she sustained a diagnosed condition causally related
to her federal employment. Appellant was afforded 30 days to submit this additional evidence.
In a July 21, 2016 letter, D.D., the Postmaster, reported that appellant was appointed as a
substitute mail carrier on February 27, 1999. She explained that appellant was required to carry a
mail route when the regular mail carrier was on vacation, sick leave, and on nonscheduled days.
D.D. indicated that appellant was assigned a right-hand drive LLV. She related that on March 31,
2007 appellant was promoted to a full-time regular rural carrier working six days per week, was
assigned to an H-route, and instructed to drive her right-hand Subaru for the route. D.D. explained
that rural carriers performed several different tasks during the course of the day. She further related
that on April 27, 2016 appellant reported that she had strained her back while lifting a spare while
changing a flat tire.
The employing establishment provided a job description for a rural carrier. It also provided
an employing establishment’s accident report, which described an April 27, 2016 incident when
appellant strained her back after she lifted a spare tire.
OWCP denied appellant’s claim by decision dated August 9, 2016, finding that the
evidence of record was insufficient to establish fact of injury. It determined that she did not
provide sufficient details regarding the employment factors which she believed caused her
condition. OWCP noted that appellant had not responded to questions regarding the employmentrelated activities she believed caused her condition, therefore, the factual portion of her claim
remained vague. It further found that the medical evidence failed to establish a diagnosed
condition causally related to her federal employment.
On January 20, 2017 appellant requested reconsideration. In a January 18, 2017 letter, she
explained that she went to her primary physician on June 15, 2016 for right shoulder pain, but he
did not take workers’ compensation cases. Appellant then went to Ms. Adkission. She explained
that she did not realize that OWCP only accepted reports from medical physicians. Appellant
indicated that she was also treated by Dr. Eugene Jacob, an orthopedic surgeon.
In a January 5, 2017 report, Dr. Jacob noted that appellant’s right shoulder magnetic
resonance imaging (MRI) scan arthrogram showed a small, complete tear of the supraspinatus
tendon and partial tearing of the infraspinatus tendon. He reported: “this is related to [appellant’s]
work duties as a mail deliverer repetitive-type action such as pushing and pulling collection trays,
sorting mail, in the employing establishment as well as in her vehicle and over the head repetitive
movements and lifting heavy containers of mail with that right arm.” Dr. Jacob noted that this
type of repetitive work had caused appellant’s shoulder issue and tear. He reviewed her history
and conducted an examination. Dr. Jacob reported active range of motion pain with abduction and
extension against resistance. He diagnosed right shoulder bursitis/tendinitis and a complete tear

3

of the right shoulder rotator cuff. Dr. Jacob opined that appellant’s best treatment option was
surgical repair.
OWCP also received a June 27, 2016 diagnostic examination report by Dr. Anna Kogan, a
Board-certified diagnostic radiologist. Dr. Kogan noted no fracture, malalignment, or significant
degenerative changes of appellant’s right shoulder. She also reported normal findings of
appellant’s thoracic spine.
By decision dated February 23, 2017, OWCP affirmed the August 9, 2016 denial decision
with modification. It accepted appellant’s repetitive duties as a rural carrier and that she was
diagnosed with a right shoulder condition, but denied her claim because the medical evidence of
record failed to establish that her right shoulder condition was causally related to the accepted
employment factors.
On March 13, 2017 appellant again requested reconsideration. She related that she had
seen another specialist for her shoulder and indicated that she was unable to work because of
permanent aggravation of her shoulder condition. Appellant alleged that her right shoulder was
worsening and that she needed surgery. She resubmitted Dr. Kogan’s June 27, 2016 right shoulder
and thoracic diagnostic examination report and Ms. Adkission’s June 27, 2016 examination note.
OWCP received a December 30, 2016 right shoulder MRI scan arthrography examination
report by Dr. George Dunn, a Board-certified diagnostic radiologist. Dr. Dunn reported a fullthickness tear of the supraspinatus insertion, additional articular-sided partial tearing of the
remainder of the supraspinatus, and tendinopathy and bursal surface irregularity of the
infraspinatus, without additional significant tear.
Appellant submitted additional reports by Dr. Jacob. In a December 21, 2016 report,
Dr. Jacob related that she was examined for complaints of right shoulder symptoms for
approximately six months. He noted that appellant had no specific injury, but experienced pain
and discomfort with work activity. Dr. Jacob explained that she worked both in the office and
delivering mail, which required using her right arm to open and close mailboxes and place mail in
the mailbox. Upon physical examination of appellant’s right shoulder, he reported mildly positive
impingement and moderately positive O’Brien’s test. Dr. Jacob noted no motor deficit, but that
she complained of paresthesia of the hand. Extension and abduction against resistance were mildly
painful. He diagnosed right shoulder bursitis/tendinitis and labral tear.
In a January 16, 2017 progress note, Dr. Jacob indicated that a right shoulder arthrogram
showed a small complete tear of the supraspinatus tendon and partial tearing of the infraspinatus
tendon. He opined that it was related to appellant’s work duties as a mail deliverer repetitive-type
action, such as pushing, pulling, and collecting trays, sorting mail in the postal vehicle, and
overhead repetitive movements and lifting heavy containers in the employing establishment and
in her vehicle with her right arm. Dr. Jacob diagnosed complete tear of the right shoulder rotator
cuff, right shoulder bursitis/tendinitis, and right shoulder labral tear. In a January 23, 2017 work
status note, he indicated that appellant could return to light-duty restrictions of no more than two
pounds and no repetitive motion until her next visit.

4

Dr. Jacob further explained in a March 1, 2017 report that although appellant did not have
a specific date of injury with her job as a mail carrier, however, he felt strongly that “this is work[-]
related repetitive-type work” that caused the rotator cuff tear. He indicated that her examination
was unchanged as far as pain and discomfort with active range of motion. Dr. Jacob diagnosed
complete tear of the right shoulder rotator cuff. In a work status note, he indicated that appellant
should be off work until her next appointment on March 22, 2017. In a March 22, 2017 work
status note, Dr. Jacob reported that she should be off work until her next appointment.
In a March 30, 2017 statement, appellant provided a detailed account of the employmentrelated activities, which she believed contributed to her condition. She explained that she arrived
at work at 7:45 a.m. and when she entered the employing establishment she had to bend over to
pick up a tray of mail from the floor and lift the tray to a ledge approximately three feet tall.
Appellant noted that the tray was about three feet long, which required her to extend her arms out
past shoulder length. She indicated that she sorted through the mail by pulling handfuls of mail to
the front of the tray with her right arm. Appellant reported that she received approximately four
to five trays on Mondays and three trays from Tuesdays through Saturdays. She related that she
cased the mail by reaching above her head and pushing the mail in each slot on the case for each
individual customer. Appellant noted that there were approximately 455 customers on her route.
Appellant reported that the next step was magazines, which were in tubs approximately
one foot high. She explained that she lifted the tubs off the floor onto the ledge, pulled the plastic
off each bundle of magazines, and cased them, using the same repetitive motion, into each
individual case. Appellant indicated that on Mondays the route usually had two to three tubs, from
Tuesdays through Saturdays around two tubs, and the day after a holiday, around four to six tubs.
She related that they next sorted parcels. Appellant explained that she pulled out each parcel,
walked to the case, and pushed a parcel marker into the case. She reported that she also separated
the small parcels from the large ones. Appellant noted that the parcels were all shapes and sizes,
which could weigh up to 70 pounds. She explained that it required her to use her shoulders for
lifting, then extending the parcels out to give to customers or pushing the small ones into mail
boxes. Appellant indicated that she then pulled down the mail by reaching above her head with
her right arm, pulling the mail out by gathering about five or six slots of mail into her left hand,
taking two rubber bands with her right hand and pulling it around the mail with her left hand, and
placing the mail into a tray about three feet long. She reported that when the tray was full, she
picked up the tray, extending her arms past shoulder width, and placed it into the cart that the
parcels were in.
After pulling down all the mail out of the case, appellant picked up all parcels and parcel
tubs and placed them into the cart. She then loaded her postal vehicle by wheeling the cart full of
parcels and parcel tubs down a ramp and pulling the parcels and parcel tubs out of the cart into her
vehicle. Appellant explained that on her route she drove up to the customer’s mailbox, pulled the
box open, pushed the mail into the box, and reached down for the lid of the mailbox and pushed it
shut. She noted that she had to stretch across her vehicle to reach for mail then reach for mail
boxes out of various heights. Appellant reported that she would only like her right shoulder
considered for her claim as she wanted to undergo surgery. She alleged that she had new medical
records that she wanted to submit along with the answers to the questionnaire that was sent on
July 6, 2016.

5

By decision dated May 24, 2017, OWCP affirmed the denial of appellant’s claim with
modification. It found that she failed to establish fact of injury because inconsistencies in the
evidence of record cast serious doubt as to what work factors she alleged caused or contributed to
her right shoulder condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence4 including that he or she sustained an injury in the performance of duty, and that any
specific condition or disability for work for which compensation is claimed is causally related to
that employment injury.5 In an occupational disease claim, appellant’s burden requires submission
of the following: (1) a factual statement identifying employment factors alleged to have caused or
contributed to the presence or occurrence of the disease or condition; (2) medical evidence
establishing the presence or existence of the disease or condition for which compensation is
claimed; and (3) medical evidence establishing that the diagnosed condition is causally related to
the employment factors identified by the employee.6
To determine whether a federal employee has sustained an injury in the performance of
duty, it first must be determined whether fact of injury has been established.7 There are two
components involved in establishing the fact of injury. First, the employee must submit sufficient
evidence to establish that she actually experienced the employment incident at the time, place, and
in the manner alleged.8 Second, the employee must submit evidence, generally only in the form
of probative medical evidence, to establish that the employment incident caused a personal injury.9
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.10 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the

3

Id.

4

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

5

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB
1143, 1145 (1989).
6

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

7

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

8

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

9

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

10

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

6

nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.11
ANALYSIS
Appellant alleged that she sustained left hip and back pain and a right shoulder condition
due to the repetitive duties of her employment. OWCP denied her claim finding that she failed to
establish fact of injury.
In its May 24, 2017 decision, OWCP found that appellant had not established fact of injury
because of inconsistent descriptions in the evidence of record regarding her repetitive work duties
as a mail carrier. It noted that she initially attributed her medical condition to driving and sitting
in her postal vehicle and casing mail, but the medical evidence of record described pushing,
pulling, and collecting mail trays, sorting mail, and lifting heavy containers with her right arm as
the cause of appellant’s condition. OWCP determined that these inconsistent descriptions casted
serious doubt as to whether the alleged work factors occurred in the manner that appellant alleged.
The Board finds, however, that the evidence of record substantiates that appellant’s duties
as a rural mail carrier required casing, sorting, and collecting mail, as well as driving, sitting and
reaching in her postal vehicle.12
In a July 21, 2016 letter, D.D. indicated that rural carriers performed several different tasks
during the course of the day. In addition, appellant provided a detailed description of her
employment duties in a March 30, 2017 statement. She stated that her duties in the employing
establishment included casing, sorting, and collecting mail, which required bending over to pick
up trays of mail, pushing and pulling mail in each slot, and reaching over her head. Appellant also
reported that her duties while delivering mail required sitting in her postal vehicle, driving up to
mailboxes, pulling the box open, pushing the mail into the box, and reaching to close the lid of the
mailbox. She noted that she often had to stretch across her vehicle to reach for mail and also reach
up for mailboxes of various heights. There is no evidence in the record to refute appellant’s
claimed employment factors to include casing and sorting mail and delivering mail in a postal
vehicle. The position description also provided by the employing establishment indicated that the
duties and responsibilities of a rural carrier required sorting mail in delivery sequence, loading
mail in vehicles, and delivering mail to customers along a prescribed route. It also noted that the
physical requirements of the position included prolonged standing, walking, bending, reaching
above shoulder, handling and lifting heavy containers of mail, and operation of a truck or motor
vehicle. Consequently, the Board finds that appellant has established her alleged employment
factors.13
Appellant did submit medical evidence to the record from Dr. Jacobs which related a
diagnosis of left hip pain, bursitis/tendinitis, and tear of right rotator cuff. As OWCP has not yet
11

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

12

See S.R., Docket No. 14-1086 (issued February 26, 2015).

13

See V.R., Docket No. 09-1701 (issued March 9, 2010).

7

evaluated the medical evidence, the case will be remanded to OWCP for evaluation of the medical
evidence to determine whether she sustained a medical condition and/or disability due to her
employment. After such further development as deemed necessary, OWCP shall issue a de novo
decision.14
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the May 24, 2017 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded to OWCP for further proceedings
consistent with this opinion.
Issued: June 27, 2018
Washington, DC

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

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

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

14

See generally, J.C., Docket No. 16-1206 (issued November 17, 2016).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Greenville, SC, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-1895
Issued: September 22, 2020

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 September 14, 2019 appellant filed a timely appeal from a September 4, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $2,025.55 because she received an improper payment of compensation benefits for the

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the September 4, 2019 decision, OWCP received additional evidence. 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.

period February 3 through March 2, 2019; and (2) whether appellant was at fault in the creation of
the overpayment, thereby precluding waiver of recovery of the overpayment.
FACTUAL HISTORY
On July 28, 2016 appellant, then a 44-year-old custodian, filed a traumatic injury claim
(Form CA-1) alleging a right shoulder injury on June 20, 2016 due to handling a hose while in the
performance of duty. OWCP accepted her claim for strain of the muscles/tendons of the right
rotator cuff. Appellant stopped work on June 23, 2017 and OWCP paid her wage-loss
compensation on the supplemental rolls for disability from work.
In a July 16, 2018 report, Dr. Todd C. Swathwood, a Board-certified orthopedic surgeon,
reported the findings of his physical examination and concluded that appellant had 10 percent
permanent impairment of her right upper extremity under the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).3
On July 23, 2018 appellant filed a claim for a schedule award (Form CA-7) due to her
accepted employment injury.
On October 29, 2018 OWCP referred appellant’s case along with a statement of accepted
facts to Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving as an OWCP district
medical adviser (DMA), for evaluation of her right upper extremity permanent impairment. On
October 31, 2018 the DMA reviewed Dr. Swathwood’s findings and concurred with the
determination that appellant had 10 percent permanent impairment of her right upper extremity
under the sixth edition of A.M.A., Guides.
By decision dated November 29, 2018, OWCP granted appellant a schedule award for 10
percent permanent impairment of her right upper extremity. The award ran for 31.2 weeks from
July 21, 2018 through February 24, 2019. OWCP paid appellant schedule award compensation
based on her pay rate of $674.12 per week.
Appellant received five compensation payments covering the period of the schedule award
(July 21, 2018 through February 24, 2019) which were directly deposited into her bank account.
The amounts, deposit dates, and covered periods of payment were as follows: $8,161.67 on
December 7, 2018 (covering the period July 21 through November 10, 2018); $2,022.36 on
December 8, 2018 (November 11 through December 8, 2018); $2,022.36 on January 5, 2019
(December 9, 2018 through January 5, 2019); $2,022.36 on February 2, 2019 (January 6 through
February 2, 2019); and $1,579.75 on March 1, 2019 (February 3 through 24, 2019). On March 2,
2018 appellant also received a sixth purported schedule award payment in the amount of $2,025.55
which was identified as covering the period February 3 through March 2, 2019, a period which
overlapped and extended beyond the period of the fifth payment.
The case record contains a manual adjustment form completed on March 28, 2019 in which
an OWCP claims examiner calculated that appellant received a $2,025.55 overpayment.

3

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

2

In a March 28, 2019 notice, OWCP advised appellant of its preliminary determination that
she received a $2,025.55 overpayment of compensation due to her receipt of schedule award
compensation to which she was not entitled. It also made a preliminary determination that she
was at fault in the creation of the overpayment. OWCP advised appellant that she could submit
evidence challenging the fact, amount, or finding of fault and request waiver of the overpayment.
It informed her that she could submit additional evidence in writing or at a prerecoupment hearing,
but that a prerecoupment hearing must be requested within 30 days of the date of the written notice
of overpayment. OWCP requested that appellant complete and return a financial information
questionnaire (Form OWCP-20) within 30 days even if she was not requesting waiver of the
overpayment.
On April 2, 2019 appellant requested reconsideration of the November 29, 2018 schedule
award decision, noting that she was only challenging the amount of the overpayment. She
maintained that OWCP should have based its schedule award payment calculations on a pay rate
of $678.00 per week, rather than $674.12.
On April 22, 2019 appellant requested a prerecoupment hearing before a representative of
OWCP’s Branch of Hearings and Review, noting that she disagreed that an overpayment
occurred.4 She submitted a Form OWCP-20 completed on April 22, 2019 in which she listed
$5,400.00 in monthly income, $3,541.00 in monthly expenses, and $10,000.00 in assets. Appellant
did not provide documentation for all of her monthly expenses.
By decision dated July 3, 2019, OWCP denied modification of its November 29, 2018
decision, finding that it had properly calculated appellant’s schedule award payments based on the
proper pay rate.
During the July 29, 2019 prerecoupment hearing, appellant indicated that she did not
receive her first schedule award payment until months after the July 21, 2018 start date of the
schedule award. She asserted that she was confused about the last two schedule award payments
received in March 2019 and thought she was entitled to receive both of them given that the
schedule award payments “didn’t start on time.” Appellant again maintained that the amount of
the $2,025.55 overpayment was incorrect because she should have received $2,269.00 for each
month that her schedule award ran, rather than $2,022.36.5
By decision dated September 4, 2019, OWCP’s hearing representative finalized the
preliminary determination that appellant received a $2,025.55 overpayment of compensation. The
hearing representative also finalized the preliminary determination that appellant was at fault in
the creation of the overpayment, finding that she should have known that she could not have
received schedule award compensation that covered a period after the February 24, 2019 expiration
of the award. It was determined that, therefore, waiver of recovery of the overpayment was

4

In an April 22, 2019 letter, appellant asserted that the amount of the $2,025.55 overpayment was incorrect because
she should have received $2,269.00 for each month that her schedule award ran, rather than $2,022.36.
5
During the hearing, appellant further discussed her financial circumstances. After the hearing, she submitted
additional financial documentation.

3

precluded. The hearing representative discussed appellant’s financial information and required
repayment of the overpayment through payments of $200.00 every 28 days.6
LEGAL PRECEDENT -- ISSUE 1
FECA provides that the United States shall pay compensation for the disability or death of
an employee resulting from personal injury sustained while in the performance of duty.7 When an
overpayment has been made to an individual because of an error of fact or law, adjustment shall
be made under regulations prescribed by the Secretary of Labor by decreasing later payments to
which the individual is entitled.”8
OWCP’s procedures provide that an overpayment is created when a schedule award
expires, but compensation continues to be paid.9
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$2,025.55 because she received an improper payment of compensation benefits for the period
February 3 through March 2, 2019.
The record reflects that appellant properly received schedule award payments for the period
July 21, 2018 to February 24, 2019 pursuant to OWCP’s November 29, 2018 schedule award
decision. However on March 2, 2019 appellant received an improper payment in the amount of
$2,025.55, purportedly for the period February 3 through March 2, 2019.10 The Board finds that
she was not entitled to this $2,025.55 payment as she had already been fully compensated for the
schedule award.11 The record thus establishes that appellant received an overpayment of
compensation in the amount of $2,025.55.

6
With respect to the recovery of an overpayment, the Board’s jurisdiction is limited to those cases where OWCP
seeks recovery from continuing compensation benefits. A.B., Docket No. 18-0915 (issued October 24, 2018);
Miguel A. Muniz, 54 ECAB 217 (2002). As appellant was not in receipt of continuing compensation at the time of
OWCP’s September 4, 2019 overpayment determination, the Board does not have jurisdiction over the method of
recovery of the overpayment in this case. See Lorenzo Rodriguez, 51 ECAB 295 (2000); 20 C.F.R. § 10.441.
7

5 U.S.C. § 8102(a).

8

Id. at § 8129(a).

9

C.P., Docket No. 19-1985 (issued July 1, 2020); R.J., Docket No. 17-1974 (issued March 23, 2018); Federal
(FECA) Procedure Manual, Part 6 -- Debt Management, Identifying and Calculating an Overpayment, Chapter
6.200.2f(1)(I) (September 2018).
10

The March 2, 2019 payment duplicated a March 1, 2019 payment covering a period for which appellant received
appropriate schedule award compensation (February 3 through 24, 2019) and then extended beyond the expiration of
the schedule award on February 24, 2019.
11
See M.J., Docket No. 19-1665 (issued July 29, 2020). Appellant argued that the amount of the $2,025.55
overpayment was incorrect because she should have received $2,269.00 for each month that her schedule award ran,
rather than $2,022.36. However, she did not provide adequate support for this argument.

4

LEGAL PRECEDENT -- ISSUE 2
5 U.S.C. § 8129(b) provides: “Adjustment or recovery by the United States may not be
made when incorrect payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of FECA or would be against equity and good
conscience.”12 A claimant who is at fault in the creation of the overpayment is not entitled to
waiver.13 On the issue of fault, 20 C.F.R. § 10.433(a) provides that an individual will be found at
fault if he or she has done any of the following: (1) made an incorrect statement as to a material
fact which he or she knew or should have known to be incorrect; (2) failed to provide information
which he or she knew or should have known to be material; or (3) accepted a payment which he
or she knew or should have known was incorrect.14
Section 10.433(b) of OWCP’s regulations provides that whether or not an individual was
at fault with respect to the creation of an overpayment depends on the circumstances surrounding
the overpayment. The degree of care expected may vary with the complexity of those
circumstances and the individual’s capacity to realize that he or she is being overpaid.15
ANALYSIS -- ISSUE 2
The Board finds that OWCP improperly found that appellant was at fault in the creation of
the overpayment.
In cases where a claimant receives compensation through direct deposit, the Board has held
that OWCP must establish that, at the time a claimant received the direct deposit in question, he
or she should have known that the payment was incorrect.16 The Board has held that an employee
who receives payments from OWCP in the form of a direct deposit is not at fault for the first
incorrect deposit into his or her account since the acceptance of the overpayment, at the time of
receipt of the direct deposit, lacks the requisite knowledge.17 Because fault is defined by what the
claimant knew or should have known at the time of acceptance, one of the consequences of
electronic fund transfers is that the claimant lacks the requisite knowledge at the time of the first
incorrect payment.18 Whether or not OWCP determines that an individual is at fault with respect
to the creation of an overpayment depends on the circumstances surrounding the overpayment.19

12

5 U.S.C. § 8129(b).

13

See K.P., Docket No. 19-1151 (issued March 18, 2020); R.G., Docket No. 18-1251 (issued November 26, 2019);
C.Y., Docket No. 18-0263 (issued September 14, 2018).
14

20 C.F.R. § 10.433(a).

15

Id. at § 10.433(b); see also D.M., Docket No. 17-0983 (issued August 3, 2018).

16

T.N., Docket No. 17-0387 (issued November 28, 2018); J.K., Docket No. 08-1761 (issued January 8, 2009); Joan
Ross, 57 ECAB 694 (2006); Desiderio Martinez, 55 ECAB 245 (2004).
17

Id.; Tammy Craven, 57 ECAB 589 (2006).

18

Id.

19

Id.

5

The Board finds that the evidence of record establishes that on the date of the first direct
deposit of compensation following the termination of her schedule award compensation appellant
did not know or would have had reason to know that she was accepting a direct deposit to which
she was not entitled. The record does not contain documentation or other evidence to demonstrate
that she had knowledge at the time of the March 2, 2019 direct deposit in the amount of $2,025.55
that the payment was incorrect. Therefore, when the improper direct deposit was made, appellant
had no knowledge that it was incorrect. Appellant, therefore, cannot be found to be at fault in the
acceptance of the March 2, 2019 direct deposit.20 The case must therefore be remanded to OWCP
for a de novo decision to determine whether she is entitled to waiver of recovery of the
overpayment in the amount of $2,025.55.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$2,025.55 because she received an improper payment of compensation for the period February 3
through March 2, 2019. The Board further finds that OWCP improperly found that she was at
fault in the creation of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the September 4, 2019 decision is affirmed in part
and reversed in part. The case is remanded for further action consistent with this decision of the
Board.
Issued: September 22, 2020
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

20

See M.J., supra note 11.

6