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

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

Docket No. 17-0979
Issued: October 11, 2017

Case Submitted on the Record

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

JURISDICTION
On April 4, 2017 appellant, through counsel, filed a timely appeal from a January 31,
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.
ISSUE
The issue is whether appellant has established more than two percent permanent
impairment of her right lower extremity, for which she previously received a schedule award.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 9, 2013 appellant, then a 39-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that on that same date she sustained a right leg fracture when
she slipped and fell while delivering mail. She stopped work on July 9, 2013 and received
continuation of pay benefits. By decision dated August 29, 2013, OWCP accepted the claim for
right closed fracture of fibula.
Appellant sought treatment with Dr. Paul J. Rucinski, Board-certified in emergency
medicine, who treated her right proximal fibula fracture with a hinged knee brace and crutches.
In a November 5, 2013 diagnostic report, Dr. James B. Vogler III, a Board-certified
diagnostic radiologist, reported that a magnetic resonance imaging (MRI) scan of the right knee
revealed signal abnormalities in the posterior cruciate suggesting the residuals of a grade 2 sprain
and/or intraligamentous mucinous degeneration. He further provided findings of healing
nondisplaced fracture of the proximal fibula with adjacent post-traumatic tendinitis of the distal
biceps femoris insertion and the origin of the peroneus longus tendon, no discrete tendon tears.
In a November 7, 2013 medical report, Dr. Rucinski reviewed a right knee MRI scan and
diagnosed healing nondisplaced fracture of the proximal fibula with adjacent post-traumatic
tendinitis. He reported that appellant had reached maximum medical improvement (MMI) with a
zero percent impairment rating.
In an October 7, 2014 medical report, Dr. Karen Garvey, Board-certified in internal and
occupational medicine, provided findings on physical examination and review of diagnostic
testing, noting that appellant reached MMI on November 7, 2013. In accordance with the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides),3 Table 16-3 Knee Regional Grid, she noted use of the diagnosis
of proximal tibial shaft fracture as the equivalent diagnosis and substitute for the proximal
nondisplaced fracture of the fibula.4 Dr. Garvey determined that proximal tibial shaft fracture
resulted in a class 1 grade C default diagnosis-based impairment (DBI) rating of five percent.
She assigned a grade modifier of zero for functional history due to normal gait;5 a grade modifier
of one for physical examination due to minimal palpatory findings without observed
abnormalities for the swelling of the proximal fibula region on the right leg;6 and a grade
modifier of one for clinical studies which was used to confirm the diagnosis, as well as a mild
pathology for the MRI scan report which showed adjacent post-traumatic tendinitis of the distal
biceps femoris insertion.7 Applying the net adjustment formula, Dr. Garvey subtracted 1, the
numerical value of the class, from the numerical value of the grade modifier for each applicable
component (functional history, physical examination, and clinical studies) and then added those
3

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

4

Id. at 511.

5

Id. at 516, Table 16-6.

6

Id. at 517, Table 16-7.

7

Id. at 519, Table 16-8.

2

values, resulting in a net adjustment of negative 1 ((0-1) + (1-1) + (1-1).8 Application of the net
adjustment formula meant that movement was warranted one place to the left of class 1 default
value grade C to grade D based on Table 16-3.9 Therefore, the DBI rating for appellant’s right
fibula fracture yielded a four percent permanent impairment of the right lower extremity.10
OWCP routed Dr. Garvey’s report and the case file to Dr. James Dyer, a Board-certified
orthopedic surgeon serving as an OWCP district medical adviser (DMA), for review and a
determination on whether appellant sustained a permanent partial impairment of the right lower
extremity and for a determination on date of MMI.
In a June 1, 2015 medical report, Dr. Dyer determined that appellant sustained one
percent permanent impairment of the right lower extremity. He noted that Dr. Garvey
incorrectly applied the A.M.A., Guides as she chose the diagnosis of proximal tibial shaft
fracture as the equivalent diagnosis to substitute for proximal nondisplaced fracture of the fibula.
Dr. Dyer noted that this was not a correct basis for the impairment rating as there was no DBI in
the A.M.A., Guides for fracture of the fibula. He determined that the rating should be based on
class 1 severity for biceps femoris tendinitis, resulting in one percent permanent impairment.11
Dr. Dyer found that examination findings and complaints were consistent with ongoing distal
biceps tendinitis rather than a fibular fracture, resulting in one percent permanent impairment of
the right lower extremity. However, he did not explain his calculations when arriving at his
lower extremity impairment rating.
Dr. Dyer concluded that MMI was reached on
November 7, 2013.
On June 17, 2015 appellant filed a claim for a schedule award (Form CA-7).
By letter dated June 24, 2016, OWCP provided appellant a copy of the DMA’s report and
requested that her treating physician review and comment on his impairment rating. It noted that
the DMA found that the A.M.A., Guides were used incorrectly when applying a schedule award
for her right fibula closed fracture.
By letter dated July 30, 2015, counsel for appellant argued that appellant was not required
to submit a report from her physician and it was OWCP’s obligation to send her to another
physician if they disagreed with her findings.
By decision dated September 9, 2015, OWCP granted appellant a schedule award for one
percent permanent impairment of the right lower extremity. It found that the weight of the
medical evidence rested with Dr. Dyer serving as OWCP’s DMA. The date of MMI was noted
as November 7, 2013. The award covered a period of 2.88 weeks from November 7 to 27, 2013.

8

Id. at 521.

9

Id.

10

Id.

11

Id. at 509.

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By letter dated September 16, 2015, appellant, through counsel, requested an oral hearing
before an OWCP hearing representative.
By decision dated March 10, 2016, an OWCP hearing representative set aside the
September 9, 2015 schedule award decision and remanded the case for further development. She
noted that the A.M.A., Guides provided that, if a specific diagnosis was not listed in the DBI
grid, Table 16-3, the examiner should identify a similar listed condition to be used as a guide to
the impairment calculation.12 In this instance, the DMA did not explain why using the diagnosis
of proximal tibial shaft fracture was incorrect. The hearing representative remanded the case for
a DMA to review the impairment rating completed by Dr. Garvey and offer an opinion
concerning why use of the similar diagnosis of proximal tibial shaft fracture could not be
substituted as an equivalent diagnosis in determining the impairment rating of the right leg.
Following any further development as deemed necessary, OWCP was instructed to issue a de
novo decision on the claim.
On March 16, 2016 OWCP routed the reports of Dr. Garvey and Dr. Dyer, as well as the
case file, to Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving as OWCP’s
DMA, for review and a determination on whether appellant sustained a permanent partial
impairment of the right lower extremity and date of MMI.
In a March 16, 2016 report, Dr. Katz noted review of both Dr. Garvey and Dr. Dyer’s
reports with respect to the right lower extremity impairment rating. He determined that Dr. Dyer
utilized the most appropriate method for rating the DBI as tendinitis in Table 16-3.13 Dr. Katz
noted that no grid existed for proximal fibular fracture and that a nondisplaced proximal fibular
fracture was not equivalent to a nondisplaced proximal tibia fracture. As such, the most likely
source for the ongoing difficulties documented by Dr. Garvey would be distal biceps tendinitis
which was documented by MRI scan. Using the Table 16-3 Knee Regional Grid, diagnostic key
factor for tendinitis, palpatory and/or radiographic findings resulted in class 1 with a default
value at two percent. Dr. Katz assigned a grade modifier of zero for functional history, one for
physical examination, and two for clinical studies based on Dr. Garvey’s findings. Applying the
net adjustment formula resulted in zero ((0-1) + (1-1) + (2-1)), warranting two percent permanent
impairment of the right lower extremity under class 1 default value C.14 Dr. Katz concluded that
the date of MMI was October 7, 2014, the date of Dr. Garvey’s examination.
By decision dated April 18, 2016, OWCP granted appellant a schedule award for an
additional one percent permanent impairment of the right lower extremity, totaling two percent
permanent impairment. It found that the weight of the medical evidence rested with Dr. Katz
serving as OWCP’s DMA. The date of MMI was noted as October 7, 2014. The award covered
a period of 2.88 weeks from October 7 to 27 2014.

12

Id. at 500, 16.2c

13

Supra note 11.

14

Id.

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By letter dated April 25, 2016, appellant, through counsel, requested a telephone hearing
before an OWCP hearing representative.
At the December 7, 2016 hearing, counsel for appellant argued that appellant’s claim had
not been accepted for bicep tendinitis which was used by the DMA to calculate her impairment
rating. As the condition was not accepted by OWCP, counsel argued that the appropriate DBI
was that used by Dr. Garvey.
By decision dated January 31, 2017, OWCP’s hearing representative affirmed the
April 18, 2016 schedule award decision finding that appellant had established two percent
permanent impairment of the right lower extremity. He noted that the weight of the medical
evidence rested with Dr. Katz serving as OWCP’s DMA.
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.15 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.16
The A.M.A., Guides provide a DBI method of evaluation utilizing the World Health
Organization’s International Classification of Functioning, Disability and Health (ICF). For
lower extremity impairments, the evaluator identifies the impairment of the Class of Diagnosis
(CDX) condition, which is then adjusted by grade modifiers based on Functional History
(GMFH), Physical Examination (GMPE), and Clinical Studies (GMCS).17 The net adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).18 Evaluators are directed to
provide reasons for their impairment rating choices, including choices of diagnoses from
regional grids and calculations of modifier scores.19
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and

15

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

16

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
17

Supra note 3 at 493-531.

18

Id. at 521.

19

R.V., Docket No. 10-1827 (issued April 1, 2011).

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percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.20
ANALYSIS
OWCP accepted appellant’s claim for right closed fracture of fibula. The Board finds
that appellant has not established that she has more than two percent permanent impairment of
the right lower extremity, for which she previously received a schedule award.
In an October 7, 2014 medical report, appellant’s treating physician, Dr. Garvey reported
that appellant sustained four percent permanent impairment of the right lower extremity, using
the DBI rating method for a diagnosis for a proximal tibial shaft fracture as a substitute for the
accepted condition of proximal nondisplaced fracture of the fibula.21 She explained that no key
diagnostic factor exists under Table 16-3 Knee Regional Grid for a proximal fibular fracture,
warranting use of the proximal tibial fracture as it was adjacent to the knee. Dr. Dyer, serving as
OWCP’s DMA, disagreed with Dr. Garvey’s rating finding that the impairment should be based
on the diagnosis of biceps femoris tendinitis.
OWCP routed the reports of Dr. Garvey and Dr. Dyer to Dr. Katz, serving as OWCP’s
DMA, for review and comment. In a March 16, 2016 report, Dr. Katz determined that appellant
was entitled to two percent permanent impairment of the right lower extremity based on the
diagnostic key factor for tendinitis, palpatory and/or radiographic findings, resulting in class 1
grade C default value. He determined that Dr. Dyer utilized the most appropriate method for
rating under tendinitis and Dr. Garvey incorrectly utilized the diagnosis of a nondisplaced
proximal tibia fracture as it was not equivalent to a nondisplaced proximal fibular fracture.
Based on the opinion of Dr. Katz, OWCP issued a schedule award for two percent permanent
impairment of the right lower extremity.
The Board finds that Dr. Katz’s report is sufficient to represent the weight of medical
evidence.22 The Board notes that the DMA disagreed with the use of proximal tibial shaft
fracture as a substitute for proximal fibula fracture. The DMA noted that the diagnoses were not
equivalent. Rather, he explained that the diagnosis should be based on distal biceps tendinitis, as
documented by the MRI scan of the right knee, since the Knee Regional Grid contained no
diagnostic factor for a fibula fracture.23 Counsel for appellant argued that Dr. Katz improperly
utilized tendinitis to calculate appellant’s impairment rating as it was not an accepted condition
of the claim. Section 16.2c of the A.M.A., Guides provides that, “In the event that a specific
diagnosis is not listed in the DBI grid, Table 16-3, the examiner should identify a similar listed
condition to be used as a guide to the impairment calculation. The rationale for this decision

20

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (March 2017).
21

Supra note 4.

22

J.S., Docket No. 13-2132 (issued July 23, 2014).

23

Supra note 4.

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should be described.”24 Dr. Katz provided proper medical rationale by explaining that the
diagnosis of distal biceps tendinitis best represented appellant’s impairment and that it was in
fact a condition that had been documented by MRI scan examination.
The Board also finds that Dr. Katz properly rated appellant’s permanent impairment.
Dr. Katz used Table 16-3 Knee Regional Grid, diagnostic key factor for tendinitis. He related
that appellant’s palpatory and/or radiographic findings resulted in class 1 with a default value at
two percent. Dr. Katz assigned a grade modifier of zero for functional history, one for physical
examination, and two for clinical studies based on Dr. Garvey’s findings. He then explained that
the net adjustment formula ((0-1) + (1-1) + (2-1)), resulted in the default value of C which
reflected a two percent permanent impairment of the right lower extremity.25 As such, his report
represents the weight of the medical evidence.
The Board notes that Dr. Garvey opined that since there was no DBI grid for proximal
fibular fracture, appellant’s impairment should be rated for proximal tibial fracture as it was
adjacent to the knee. Dr. Garvey, however, did not explain why appellant’s permanent
impairment was properly evaluated by application of a grid for a body part that had no
documented findings, but was selected because of proximity to the impaired body part. He
therefore did not provide sufficient rationale for his selection of the diagnosis to be used for
evaluation of appellant’s permanent impairment.26
Appellant may request a schedule award or increased schedule award at any time based
on evidence of new exposure or medical evidence showing a progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that she has more than two percent
permanent impairment of her right lower extremity, for which she previously received a
scheduled award.

24

Supra note 12.

25

See M.B., Docket No. 16-1826 (issued May 15, 2017).

26

Id.

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ORDER
IT IS HEREBY ORDERED THAT the January 31, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 11, 2017
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.U., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
St. Louis, MO, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 11-1228
Issued: February 15, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On April 18, 2011 appellant, through counsel, sought appeal from a March 22, 2011 letter
of the Office of Workers’ Compensation Programs (OWCP). The Board assigned Docket
No. 11-1228.
The Board issued a merit decision in this case on July 27, 2010. Appellant thereafter
filed a timely request for reconsideration to OWCP on March 7, 2011 and submitted additional
medical evidence. On March 22, 2011 OWCP advised appellant that decisions of the Board
were final and could not be reconsidered by OWCP. Appellant was advised that his request for
reconsideration had been faxed to the Board on March 15, 2011.
The Board, having duly considered the matter, notes that its jurisdiction is limited to the
review of final adverse OWCP decisions.1 While OWCP’s March 22, 2011 letter was advisory
in nature, it also constituted a final adverse decision as it refused to review appellant’s claim and
informed appellant that his appeal rights were solely to the Board.

1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a).

The Board, having duly considered the matter, finds that a right to reconsideration by
OWCP accompanies any subsequent merit decision on the issues, if timely filed. This right to
reconsideration of a merit decision follows any hearing or review of the written record, any
denial of modification following reconsideration and any merit decision by the Board.2 See
Leon D. Faidley, 41 ECAB 104 (1989); see also Federal (FECA) Procedure Manual, Part 2 -Claims, Reconsiderations, Chapter 2.1602.4(a) (October 2011).
As appellant filed a timely request for reconsideration before OWCP on March 7, 2011
following a merit decision by the Board, OWCP improperly informed him that his appeal rights
were only to the Board. This case will be remanded to OWCP for an appropriate decision
regarding appellant’s request for reconsideration.
IT IS HEREBY ORDERED THAT the March 22, 2011 decision of the Office of
Workers’ Compensation Programs be set aside and the case be remanded for an appropriate
decision.
Issued: February 15, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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But there is no right to reconsideration by OWCP following a decision regarding a prerecoupment hearing.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
CAPTAIN JAMES A. LOVELL FEDERAL
HEALTH CENTER, North Chicago, IL,
Employer
__________________________________________

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Appearances:
Stephanie N. Leet, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1572
Issued: March 11, 2019

Case Submitted on the Record

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

JURISDICTION
On August 17, 2018 appellant, through counsel, filed a timely appeal from a July 30, 2018
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180
days has elapsed from the last merit decision, dated August 2, 2017, to the filing of this appeal,

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.

pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.3
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On March 10, 2016 appellant, then a 56-year-old dentist, filed a traumatic injury claim
(Form CA-1) alleging that on February 12, 2016 he sustained blunt trauma to his head and a reflex
injury to his cervical spine when he hit his elbow and the center of his forehead on a mounted
surgical lamp while treating a patient in the performance of duty. On the reverse side of the claim
form, the employing establishment indicated that appellant stopped work on March 2, 2016. It
controverted the claim, indicating that appellant’s disability was a result of an occupational disease
or illness and not a traumatic injury.
In a letter dated March 15, 2016, the employing establishment challenged appellant’s
claim. It questioned whether appellant’s alleged injury was actually sustained on January 11 or
February 12, 2016.
In a development letter dated March 21, 2016, OWCP advised appellant that he had not
submitted sufficient evidence to establish his claim. It noted that the evidence was insufficient to
establish that he actually experienced the incident alleged to have caused injury. OWCP also
indicated that no medical diagnosis of a condition resulting from appellant’s alleged injury had
been provided. It provided a questionnaire for completion regarding the alleged incident of
February 12, 2016. OWCP also requested that appellant submit a narrative medical report which
provided a medical diagnosis and an opinion regarding the cause of the diagnosed condition. It
afforded him 30 days to respond with the requested information.
In a radiology report dated February 19, 2016, Dr. Mark Conneely, Board-certified in
diagnostic radiology, reviewed a magnetic resonance imaging (MRI) scan of appellant’s cervical
spine. He noted that there was a slight levoconvex curvature of the cervical spine, mild disc space
narrowing and a small osteophyte at C2-3, mild diffuse disc bulging at C3-4, diffuse disc bulging
with a small superimposed central disc herniation and bilateral foraminal stenosis at C4-5, diffuse
disc bulging and osteophyte causing mild indentation of the anterior thecal sac at C5-6, mild
diffuse disc bulging causing mild indentation of the anterior thecal sac and moderate bilateral
foraminal stenosis at C6-7, and minimal diffuse disc bulging without significant central canal or
foraminal stenosis at C7-T1. Dr. Conneely related that appellant suffered from a degenerative
2

5 U.S.C. § 8101 et seq.

3

The Board notes that appellant submitted additional evidence after the decision dated July 30, 2018. 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

disease and facet arthropathy of the cervical spine, but also indicated the primary diagnostic code
to be “minor abnormality.”
In a letter dated April 11, 2016, appellant requested a 30-day extension to submit the
requested information per the March 21, 2016 development letter. He indicated that on
January 11, 2016, while traveling to work, he slipped on ice, struck his left foot on a concrete
parking marker, and hit both elbows, back, and occipital area of his head on the ground. Appellant
noted that the event was not witnessed. He related that he performed his normal duties that day
until a coworker advised him to seek medical care for the injury to his foot and elbows. Appellant
indicated that in a separate incident, in the performance of duty, on February 12, 2016, he hit his
head on an “elbow joint” of a mounted surgical light and hyperflexed his neck. He noted that he
was dazed for 30 minutes and the event was witnessed by his supervisor and dental technician.
After approximately an hour, appellant resumed the performance of his regular duties. He related
that symptoms of head and left eye pain started in the 24 to 48 hours after the February 12, 2016
employment incident. On February 18, 2016 appellant indicated that he was diagnosed with a
dissection of his left internal carotid artery with pseudoaneurysm, ischemic stroke, and infarction
of left motor strip.
In a medical report dated April 13, 2016, Dr. Hien D. Dang, a neurology specialist,
indicated that he examined appellant on February 19, 2016. He took x-rays and diagnosed a
dissection of the left internal carotid artery. Dr. Dang noted that the injury appellant sustained
when he hit the center of his forehead on the mounted surgical lamp would not have caused the
dissection of the left internal carotid artery.
In a letter dated April 6, 2016, Dr. Sara Syeda, a family medicine specialist, indicated that
appellant was not allowed to go back to work until completion of the recommended rehabilitation.
In a medical report dated April 20, 2016, Dr. Susan Keeshin, Board-certified in physical
medicine and rehabilitation, examined appellant and opined that the carotid artery dissection
diagnosis was most likely due to the injury to appellant’s head on February 12, 2016 or appellant’s
fall on January 11, 2016. She related that appellant could return to work for 20 hours per week
starting on April 20, 2016, in a clinical, nonsurgical setting under direct supervision of a colleague
who could monitor his work performance.
By decision dated May 12, 2016, OWCP denied appellant’s claim, finding that the medical
evidence submitted failed to establish that appellant’s left carotid dissection and stroke were
caused by hitting his forehead on a mounted surgical lamp during the February 12, 2016
employment incident.
In a medical report dated May 17, 2016, Dr. Keeshin examined appellant and again
indicated that appellant’s carotid artery dissection was most likely caused by the “fall/injury to his
head/neck on February 12, 2016, or his fall on January 11, 2016.”
On May 2, 2017 appellant, through counsel, requested reconsideration of the May 12, 2016
decision. Appellant submitted additional medical evidence in support of his reconsideration
request.

3

In a letter dated June 22, 2016, Dr. David P. Calimag, a neurologist, noted that he examined
appellant on June 11, 2016 regarding his stroke symptoms due to a left carotid dissection. He
indicated that appellant fell after hitting his elbow and forehead on the mounted surgical lamp in
the February 12, 2016 employment incident. Dr. Calimag also related that appellant’s diagnosis
of a dissection of the left internal carotid artery was caused by the snapping reflex of his neck after
hitting his forehead on the mounted surgical lamp.
By decision dated August 2, 2017, OWCP denied modification of the May 12, 2016
decision. It found that the evidence submitted was insufficient to establish the claim as it was
speculative in nature, did not provide a definitive discussion of causation, and the additional
evidence was not based on a factual history of the injury to support the diagnosed condition in
connection to the February 12, 2016 employment incident.
On May 3, 2018 appellant, through counsel, requested reconsideration of the August 2,
2017 decision.
In support of his reconsideration request, appellant submitted counsel’s statement and two
coworker witness statements from Dr. Ritesh D. Radadia, a dentist, and Regilda Taylor, a dental
technician, which detailed a factual recount of the February 12, 2017 employment incident.
By decision dated July 30, 2018, OWCP denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.5 To be entitled to a merit review of
an OWCP decision denying or terminating a benefit, a claimant’s application for review must be
received within one year of the date of that decision.6 When a claimant fails to meet one of the
above standards, OWCP will deny the application for reconsideration without reopening the case
for review on the merits.7
In support of a request for reconsideration, a claimant is not required to submit all evidence
which may be necessary to discharge his or her burden of proof.8 He or she needs only to submit

4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.606(b)(3).

6

Id. at § 10.607(a).

7

Id. at § 10.608(b).

8

P.L., Docket No. 18-1145 (issued January 4, 2019); Helen E. Tschantz, 39 ECAB 1382 (1988).

4

relevant, pertinent evidence not previously considered by OWCP.9 When reviewing an OWCP
decision denying a merit review, the function of the Board is to determine whether OWCP properly
applied the standards set forth at section 10.606(b)(3) to the claimant’s application for
reconsideration and any evidence submitted in support thereof.10
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
In support of appellant’s request for reconsideration counsel alleged that the medical
evidence of record established his claim. Counsel’s belief concerning the adequacy of the
previously reviewed medical evidence neither alleged nor demonstrated that OWCP erroneously
applied or interpreted a specific point of law. Additionally, he did not advance relevant legal
arguments not previously considered by OWCP.11 Whether the previously submitted medical
evidence was legally sufficient to establish appellant’s claim had been previously considered in
OWCP’s merit decisions.12 Appellant’s request for reconsideration therefore did not show that
OWCP erroneously applied or interpreted a specific point of law, or advance a new and relevant
legal argument not previously considered by OWCP. Consequently appellant is not entitled to
review of the merits of his claim based on the first and second above-noted requirements under 20
C.F.R. § 10.606(b)(3).
The Board finds that appellant has not submitted relevant and pertinent new evidence in
this case.13 Appellant submitted two witness statements from Ms. Taylor and Dr. Radadia with
his request for reconsideration. The submission of this factual evidence does not require reopening
of appellant’s claim for review of the merits of the claim because this evidence is not relevant to
the underlying issue of the present case. As noted, the underlying issue of the present case is
medical in nature, i.e., whether appellant submitted medical evidence sufficient to establish causal
relationship between his diagnosed dissection of the left internal carotid artery and the accepted
February 12, 2016 employment incident. The Board has held that the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.14 Thus appellant is not entitled to review of the merits of his claim based on the
third above-noted requirement under 20 C.F.R. § 10.606(b)(3).

9

P.L., id.; see Mark H. Dever, 53 ECAB 710 (2002).

10

P.L., supra note 8; Annette Louise, 54 ECAB 783 (2003).

11

See S.F., Docket No 16-1019 (issued May 4, 2017).

12

See L.B., Docket No. 18-0170 (issued August 28, 2018).

13

B.T., Docket No. 18-1397 (issued January 15, 2019); 20 C.F.R. § 10.606(b)(3); see also M.S., Docket No. 181041 (issued October 25, 2018); C.N., Docket No. 08-1569 (issued December 9, 2008).
14

B.T., id.

5

The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Therefore, pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the July 30, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 11, 2019
Washington, DC

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

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

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

6


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

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Appearances:
Harry James, Jr., for the appellant
Office of Solicitor, for the Director

Docket No. 15-405
Issued: May 6, 2015

Case Submitted on the Record

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

JURISDICTION
On December 9, 2014 appellant, through his representative, filed a timely appeal from a
November 5, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than two percent permanent impairment of the
right arm, for which he received a schedule award.
On appeal appellant’s representative, asserts that the opinion of the attending physician
should be credited regarding the degree of impairment and the date of maximum medical
improvement (MMI).

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On June 22, 2012 appellant, then a 56-year-old carrier technician, filed an occupational
disease claim alleging that work duties caused pain and swelling in his right wrist and hand. In
June 2012, he came under the care of Dr. Les Benson.2 A June 20, 2012 magnetic resonance
imaging (MRI) scan study of the right wrist demonstrated severe erosive arthritic changes,
widening of the scapholunate ligament interval, thinning and perforation of the triangular
fibrocartilage complex, neutral to slightly positive ulnar variance, and dorsal tilting of the lunate.
OWCP accepted right carpal tunnel syndrome on August 7, 2012. A September 14, 2012
electrodiagnostic study of the right upper extremity was consistent with carpal tunnel syndrome.
Dr. Benson referred appellant to Dr. Robert Ippolito, Board-certified in plastic and hand surgery,
who performed right carpal tunnel decompression on January 4, 2013. Appellant was placed on
the periodic compensation rolls and returned to modified duty on August 12, 2013.
On October 22, 2013 appellant filed a schedule award claim. By letter dated October 28,
2013, OWCP informed him as to the type of evidence needed to support his schedule award
claim. This was to include an impairment evaluation from his physician that was in accordance
with the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (hereinafter A.M.A., Guides).3
In a September 16, 2013 report, Dr. Benson advised that MMI was reached on
August 6, 2013. He referenced the June 20, 2012 MRI scan study and September 14, 2012
electrodiagnostic study and diagnosed right carpal tunnel syndrome. Dr. Benson advised that the
evaluation was completed in accordance with the sixth edition of the A.M.A., Guides. He
advised that appellant’s impairment was best determined by range of motion analysis of the
wrist. Range of motion measurements of the right wrist demonstrated flexion of 28, extension of
42, radial deviation of 8, and ulnar deviation of 16, which Dr. Benson advised demonstrated
losses of 3 percent, 3 percent, 4 percent, and 4 percent respectively, for a total right upper
extremity impairment of 14 percent.
On December 20, 2013 Dr. Michael M. Katz, a Board-certified orthopedic surgeon and
the medical adviser, reviewed the medical record, including Dr. Benson’s report. He stated that
for loss of motion of the wrist, Table 15-32 of the A.M.A., Guides was applicable. Dr. Katz
advised that, under Table 15-32, appellant’s measurements for ulnar deviation and radial
deviation yielded impairments of two percent each, not the four percent found by Dr. Benson.
He further found that, as the accepted condition was carpal tunnel syndrome, Dr. Benson’s
decision to rate the right wrist on the basis of a stand-alone range of motion method rather than
using Table 15-23, Entrapment Neuropathy, implied that the entirety of the wrist motion deficit
was from the accepted diagnosis of carpal tunnel syndrome. Dr. Katz noted that the June 20,
2012 MRI scan study of the right wrist referenced by Dr. Benson demonstrated structural
articular pathology and inflammatory erosive changes within the wrist, none of which were
accepted conditions but were likely causes for decreased wrist motion. He recommended a
second opinion evaluation.
2

Dr. Benson’s credentials could not be ascertained.

3

A.M.A.., Guides (6th ed. 2008).

2

In February 2014 OWCP referred appellant to Dr. James E. Butler, a Board-certified
orthopedic surgeon, for a second opinion evaluation.4 In a February 25, 2014 report, Dr. Butler
reported appellant’s medical and surgical history and his complaint of continued right wrist and
hand pain and weakness. He noted that appellant was left-hand dominant and described the
diagnostic studies reviewed, including the September 14, 2012 electrodiagnostic study. Right
upper extremity examination demonstrated negative Finkelstein, Phalen, Tinel’s tests. Observed
wrist range of motion was decreased with flexion of 45 degrees, extension of 30, ulnar deviation
of 30, and radial deviation of 20. Grip strength, sensation testing, and strength testing were
normal. Dr. Butler diagnosed right carpal tunnel syndrome, operated, resolved. He agreed with
Dr. Benson that MMI was reached on August 6, 2013. Dr. Butler advised that, based on Table
15-23 of the A.M.A., Guides, appellant had a modifier of one for test findings, a modifier of one
for history, and a modifier of one for physical findings based on normal sensation, for a total
modifier of three with an average of one. He further noted that appellant’s QuickDASH score
was 25. Dr. Butler concluded that, based on these findings, appellant had an average grade
modifier of one with a default value of two percent right upper extremity impairment.
On April 1, 2014 Dr. H. Mobley, an OWCP medical adviser, reviewed the medical record
including Dr. Butler’s report. He advised that the date of MMI was February 25, 2014, the date
of Dr. Butler’s evaluation. Dr. Mobley agreed with Dr. Butler’s assessment under Table 15-23
that appellant had grade modifiers of one each for test findings, history, and physical findings,
which he added and averaged, finding a grade modifier of one with a default value of two
percent. He further noted that Table 15-23 indicated that functional scale could be used to
modify the impairment value and with appellant’s QuickDASH score of 25 or a mild
impairment, this too equaled a grade modifier of 1 with no modification of the final impairment
of two percent.
By decision dated April 28, 2014, appellant was granted a schedule award for two percent
impairment of the right arm, for 6.24 weeks of compensation, to run from February 25, 2014 (the
date of MMI) to April 9, 2014, based on a weekly pay rate of $1,109.69.5 He timely requested a
review of the written record, asserting that the proper date of MMI was in September 2013.
Appellant also resubmitted Dr. Benson’s September 16, 2013 report in support of a greater
schedule award.
On November 5, 2014 an OWCP hearing representative affirmed the April 28, 2014
schedule award decision. He found that the weight of the medical evidence rested with the
opinion of Dr. Butler, as reviewed by the medical adviser. The hearing representative concurred
that the date of MMI was the date of Dr. Butler’s report.

4

Dr. Butler had previously evaluated appellant on April 4, 2013 regarding his work capabilities.

5

On April 16, 2014 OWCP requested that the employing establishment provide appellant’s pay rate effective
February 25, 2014. On that day, the employing establishment advised that appellant’s annual rate of pay was
$58,281.00, which equates to $1,120.79 a week.

3

LEGAL PRECEDENT
The schedule award provision of FECA, and its implementing federal regulations6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.7 For decisions issued
after May 1, 2009, the sixth edition will be used.8
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).9 Under the sixth edition, for upper extremity impairments the evaluator
identifies the impairment class for the Class of Diagnosis (CDX), which is then adjusted by
grade modifiers based on Functional History (GMFH), Physical Examination (GMPE) and
Clinical Studies (GMCS).10 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) +
(GMCS - CDX).11
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text in
section 15.4f of the A.M.A., Guides.12 In Table 15-23, grade modifiers levels (ranging from 0 to
4) are described for the categories test findings, history, and physical findings. The grade
modifier levels are averaged to arrive at the appropriate overall grade modifier level and to
identify a default rating value. The default rating value may be modified up or down by one
percent based on functional scale, an assessment of impact on daily living activities.13
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to the medical adviser for an opinion concerning the nature and percentage of
impairment in accordance with the A.M.A., Guides, with the medical adviser providing rationale
for the percentage of impairment specified.14
6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8

FECA Bulletin No. 09-03 (issued March 15, 2009).

9

A.M.A., Guides, supra note 3 at 3, section 1.3, “The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.”
10

Id. at 385-419.

11

Id. at 411.

12

Id. at 433-50.

13

Id. at 448-50.

14

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

4

The period covered by a schedule award commences on the date that the employee
reaches MMI from the residuals of the injury. The question of when MMI has been reached is a
factual one which depends upon the medical findings in the record. The determination of such
date is to be made in each case upon the basis of the medical evidence in that case.15
ANALYSIS
The Board finds that appellant has not established that he has greater than two percent
impairment of the right upper extremity.
The Board finds the date of February 25, 2014 as the proper date of MMI. Dr. Benson’s
September 16, 2013 report is of diminished probative value. He determined that appellant’s right
arm impairment was best determined by range of motion analysis and concluded that appellant
had a 14 percent right upper extremity impairment. The accepted condition is right carpal tunnel
syndrome. As noted above, this diagnosis is properly evaluated under section 15.4f and Table
15-23 of the A.M.A., Guides.16 Carpal tunnel syndrome is not a diagnosis in which the A.M.A.,
Guides indicate that motion loss may be alternatively addressed.17 Moreover, although
Dr. Benson referenced the A.M.A., Guides, he did not indicate which table he used to assess
appellant’s range of motion. As pointed out by Dr. Katz, an OWCP medical adviser, Table
15-32 is used for wrist range of motion impairment analysis. However, the percentages provided
by Dr. Benson do not correspond with those of Table 15-32.18 For these reasons, Dr. Benson’s
report is of insufficient probative value regarding appellant’s right upper extremity impairment.
The Board finds that Dr. Butler, OWCP referral physician, properly evaluated appellant’s
right arm impairment. In his February 25, 2014 report, Dr. Butler reported appellant’s medical
and surgical history and his complaint of continued right wrist and hand pain and weakness. He
provided extensive right arm examination findings and diagnosed right carpal tunnel syndrome,
operated, resolved. Dr. Butler advised that, based on Table 15-23 of the A.M.A., Guides, test
findings, history, and physical findings yielded grade modifiers of one each, with a total modifier
of three and average of one. He further noted that appellant’s QuickDASH score was 25.
Dr. Butler concluded that, based on these findings, appellant had an average grade modifier of
one which had a default value of two percent.

15

L.H., 58 ECAB 561 (2007).

16

A.M.A., Guides, supra note 3 at 433-50.

17

Compare Tables 15-2 to 15-5. Id. at 391-405. The sixth edition of the A.M.A., Guides also provides that under
certain circumstances, range of motion may be selected as an alternative approach in rating impairment. An
impairment rating that is calculated using range of motion may not be combined with a diagnosis-based impairment
and stands alone as a rating.17 The A.M.A., Guides explains that diagnoses in the grid that may be rated using range
of motion are followed by an asterisk. Id. at 390.
18

E.g., Dr. Benson reported measurements of appellant’s radial and ulnar deviation were 8 and 16 degrees
respectively. He indicated that these yielded four percent impairments each. However, Table 15-32 indicates that
these yield impairments of two percent each. Id. at 473. Section 15.7a of the A.M.A., Guides further indicates that
range of motion should be recorded from three separate range of motion efforts. Id. at 464.

5

On April 1, 2014 Dr. Mobley, the medical adviser, reviewed the medical record including
Dr. Butler’s report. He advised that the date of MMI was February 25, 2014, the date of
Dr. Butler’s evaluation. Dr. Mobley agreed with Dr. Butler’s assessment under Table 15-23, that
appellant had grade modifiers of one each for test findings, history, and physical findings, which
he added and averaged, finding a grade modifier of one with a default value of two percent. He
further noted that Table 15-23 indicated that functional scale could be used to modify the
impairment value and, with appellant’s QuickDASH score of 25 or a mild impairment, this too
equaled a grade modifier of one, and therefore the impairment of two percent was not modified.
The Board concludes that the medical adviser applied the appropriate sections of the
A.M.A., Guides to the clinical findings of record.19 The record therefore establishes that
appellant has two percent right arm impairment, for an award of 6.24 weeks.20
On appeal appellant asserted that the date of MMI should be September 13, 2013 rather
than February 25, 2014 on which the schedule award was based. As noted above, the question of
when MMI has been reached is a factual one which depends upon the medical findings in the
record. The determination of such date is to be made in each case upon the basis of the medical
evidence in that case.21 The date is usually the date of the medical examination which
determined the extent of the impairment.22
The Board has long advised that a retroactive date for MMI carries certain disadvantages
because an earlier date could be based on a lower pay rate, and an earlier date of MMI would not
change appellant’s impairment rating or increase the number of weeks of compensation he or she
received.23 As noted above, the Board found the later date appreciate.
In this case, appellant’s reported pay rate for September 2013 was less than that reported
for February 2014. Nonetheless, the Board finds that OWCP did not use the proper pay rate for
compensation purposes. On April 16, 2014 OWCP asked the employing establishment to
provide appellant’s pay rate effective February 25, 2014. The employing establishment
responded that his pay rate was $58,281.00 annually or $1,120.79 weekly. Rather than using this
pay rate, when issuing the April 28, 2014 schedule award, OWCP instead used the pay rate
reported by the employing establishment on March 15, 2013 of $57,704.00 annually or
$1,109.69 per week. The Board will modify the April 28, 2014 schedule award, affirmed on
November 5, 2014, to reflect that the award should have been based on a weekly pay rate of
$1,120.79. The degree of impairment and number of weeks of the award is affirmed.

19

See W.M., Docket No. 11-1706 (issued March 20, 2012).

20

Section 8107b)(1) of FECA provides that 100 percent disability of the arm yields 312 weeks of compensation.
A two percent disability thus yields 6.24 weeks of compensation. 5 U.S.C. § 8107(b)(1).
21

Supra note 15.

22

J.H., Docket No. 08-2432 (issued June 15, 2009).

23

Supra note 15.

6

CONCLUSION
The Board finds that appellant has a two percent impairment of the right upper extremity,
for a total of 6.24 weeks of compensation. The Board will modify the schedule award to reflect
that the proper pay rate for schedule award compensation purposes is $1,120.79 weekly.
ORDER
IT IS HEREBY ORDERED THAT the November 5, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: May 6, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
COMMISSARY AGENCY, Dover, DE, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-2189
Issued: March 20, 2008

Case Submitted on the Record

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

JURISDICTION
On August 24, 2007 appellant filed a timely appeal from May 14 and August 10, 2007
decisions of the Office of Workers’ Compensation Programs that denied modification of a
December 18, 2006 decision denying appellant’s occupational disease claim. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he developed
an occupational disease in the performance of duty.
FACTUAL HISTORY
On October 23, 2006 appellant, then a 49-year-old meat cutting worker, filed an
occupational disease claim alleging that he developed bulging discs, disc desiccation, central tear
and bilateral neural foraminal narrowing, resulting in chronic low back pain, in the performance
of duty. He attributed his condition to repetitive bending, lifting and reaching from awkward
positions while working on a “single meat grinder system without a molder and conveyor belt.”

Appellant stated that he first realized his condition on September 13, 2006. He stopped work on
September 13, 2006 and returned to a light-duty assignment on October 26, 2006.
Appellant submitted a September 13, 2006 report from Dr. Roy E. Bands, Jr., a Boardcertified orthopedic surgeon, diagnosing degenerative lumbar discs. In a September 12, 2006
lumbar magnetic resonance imaging (MRI) scan report, Dr. Amarnath Sortur, a Board-certified
radiologist, diagnosed focal left paracentral disc bulge at T12-L1, central annular tear with
generalized disc bulge and bilateral neural foramen narrowing at L3-4, board-based disc bulge
with bilateral moderate neural foramen stenosis and bilateral facet arthritis at L4-5 and a small
focal central bulging disc at L5-S1. On October 25, 2006 Dr. Bands noted treating appellant for
lumbar stenosis. In an undated note he stated that appellant sustained “repetitive lower back
strain at work,” which “created degenerated discs.”
In a September 13, 2006 narrative, Dr. Bands stated that appellant’s work as a meat cutter
was “relatively laborious” and that appellant reported “having quite a bit of difficulty at his
strenuous job.” He noted appellant’s complaints of gradually worsening back pain and found
that although appellant’s MRI scan showed disc degeneration, disc space collapse and some
foraminal stenosis at L3-4 and L4-5, his physical examination was essentially normal. Dr. Bands
diagnosed severe disc degeneration and foraminal stenosis at L3-4 and L4-5 and lumbar
radiculopathy.
Appellant also provided a “statement of events and circumstances” and an additional
undated statement further detailing his job responsibilities. He attributed his more frequent aches
and pains, which began in 2004, to a change in the manner in which his job was performed.
Appellant also noted that he was in a motor vehicle accident in 2006 but was not injured. He
submitted August 31 and December 5, 2006 notes from Elizabeth Sipala, a nurse practitioner,
who stated that appellant’s chronic back pain was employment related and a December 1, 2006
report from Jackie Mathwich, a physical therapist.
In a September 25, 2006 “hazard report,” the employing establishment’s safety inspector
explained that the single grinder system in use was outdated and “less ergonomic” than the
double grinder system. The safety inspector noted that the single grinder system “involves more
man hours with the possibility to cause serious back injury to an employee who operates this
grinder by repetitive bending and lifting for a long period of time” and that the employing
establishment needed to change this particular machine to prevent injury to employees. In an
October 11, 2006 memorandum the employing establishment noted that, after it changed the way
that appellant’s work was performed, it had provided him with a stool as a “temporary
ergonomic aid,” but that he declined to use the stool.
On December 18, 2006 the Office denied appellant’s occupational disease claim on the
grounds that the medical evidence did not establish a causal relationship between his diagnosed
condition and employment factors.
On April 17, 2007 appellant requested reconsideration. With his request, he provided a
March 12, 2007 report from Dr. Richard I. Zamarin, a Board-certified orthopedic surgeon, who
noted appellant’s complaints of moderate intermittent back pain and referenced appellant’s
factual statements concerning his work activities. Upon physical examination Dr. Zamarin found

2

some tenderness in the lumbar and thoracic paraspinal areas. He also noted the results of
appellant’s September 12, 2006 lumbar MRI scan. Dr. Zamarin explained that he considered
appellant’s degenerative changes to be more severe than normal for his age and concluded that
his work activities had permanently aggravated his degenerative disc disease. He diagnosed
“thoracic and lumbar sprain and strain with an underlying annular tear at L3-4 and neural
foraminal narrowing, a broad based bulge, neural foraminal stenosis and facet arthritis at L4-5
and L5-S1.” Dr. Zamarin opined that “the many years of heavy physical and repetitive work”
performed by appellant as described in his statement of events and circumstances, “has
permanently aggravated the degenerative disc disease in his thoracic and lumbar spine for his
age.” He concluded that “more likely than not, [appellant’s] employment contributed to his
condition by both aggravating and accelerating it.”
By decision dated May 14, 2007, the Office denied modification on the grounds that the
medical evidence of record, including Dr. Zamarin’s March 12, 2007 report, was insufficient to
establish a causal relationship between appellant’s diagnosed condition and his employment
factors.
On May 16, 2007 appellant requested reconsideration. He asserted that Dr. Zamarin’s
references to his statement established that the physician considered the employment activities
listed therein when opining that his job activities caused or aggravated his condition. Appellant
also argued that Dr. Zamarin’s statement that his condition was “more likely than not” caused or
aggravated by his employment was not speculative or equivocal. In support of his
reconsideration request, appellant provided a May 9, 2007 work capacity evaluation from
Dr. Zamarin, stating that appellant had permanent work restrictions.
In an undated memorandum, the employing establishment noted that it had offered
appellant accommodations, including a chair, to assist with his back problems, but that he
declined. In a July 1, 2007 response, appellant stated that the accommodations offered by the
employing establishment were unsafe and noted the employing establishment’s hazard report.
On July 6, 2007 the Office referred appellant, along with a statement of accepted facts, to
Dr. Robert Allen Smith, a Board-certified orthopedic surgeon, for a second opinion examination.
In an August 7, 2007 report, Dr. Smith noted that appellant attributed his back pain to an
ergonomically outdated meat grinder. He stated that there was “no question” that appellant’s job
involved “heavy work” and that the meat grinder system used by the employing establishment
was out of date. On physical examination, Dr. Smith found satisfactory spinal range of motion
and no soft tissue abnormalities. He also noted that appellant’s neurologic examination was
objectively normal.
Although Dr. Smith indicated that appellant’s MRI scan showed
degenerative disc disease and some bulging discs, he noted that “of significance is the fact that
pre and paravertebral soft tissues all appear to be normal.” He noted that, although Dr. Bands
found some tenderness in the lumbar spine, this was not supported by objective findings.
Dr. Smith noted that Dr. Zamarin’s examination was also essentially normal. He diagnosed
degenerative disc disease and concluded that appellant’s condition was normal for his age.
Although Dr. Smith acknowledged that it was possible appellant might have sustained workrelated sprains and strains over the years, he emphasized that appellant’s MRI scan, which
showed what he considered to be age-related arthritis, did not support that appellant’s condition

3

was work related. He concluded that appellant’s degenerative disc disease was preexisting and
longstanding and opined that it was neither caused nor aggravated by appellant’s employment.
Dr. Smith also provided an August 7, 2007 work capacity evaluation noting that while appellant
had permanent physical restrictions, they were unrelated to his employment.
By decision dated August 10, 2007, the Office denied modification of its previous
decisions on the grounds that the medical evidence of record did not establish a causal
relationship between appellant’s diagnosed condition and his employment factors.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 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 the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged and that any disabilities and/or specific
conditions for which compensation is claimed are causally related to the employment injury.2
These are the essential elements of each and every compensation claim regardless of whether the
claim is predicated upon a traumatic injury or an occupational disease.3
An occupational disease or injury is one caused by specified employment factors
occurring over a longer period than a single shift or workday.4 The test for determining whether
appellant sustained a compensable occupational disease or injury is three-pronged. To establish
the factual elements of the claim, appellant must submit: “(1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying the factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the factors
identified by the claimant were the proximate cause of the condition for which compensation is
claimed or, stated differently, medical evidence establishing that the diagnosed condition is
causally related to the factors identified by the claimant.”5
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors.6 The
opinion of the physician must be based on a complete factual and medical background of the
1

5 U.S.C. §§ 8101-8193.

2

Elaine Pendleton, 40 ECAB 1143 (1989).

3

Victor J. Woodhams, 41 ECAB 345 (1989).

4

D.D., 57 ECAB ___ (Docket No. 06-1315, issued September 14, 2006).

5

Michael R. Shaffer, 55 ECAB 386, 389 (2004); citing Lourdes Harris, 45 ECAB 545 (1994); Victor J.
Woodhams, supra note 3.
6

Conard Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

4

claimant7 and must be one of reasonable medical certainty8 explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.9
ANALYSIS
The Board finds that appellant did not meet his burden of proof in establishing that he
developed an occupational disease in the performance of duty. While appellant established that
he performed certain repetitive physical activities at work, he did not provide rationalized
medical evidence establishing that work factors caused or aggravated a diagnosed condition.
In support of his occupational disease claim, appellant submitted reports from Dr. Bands,
who diagnosed degenerative disc disease and opined that appellant’s “relatively laborious” job
caused or aggravated his condition. In his undated note, Dr. Bands stated that appellant
sustained “repetitive lower back strain at work,” which “created degenerated discs,” but did not
identify the factors of employment which he believed caused or contributed to appellant’s
condition or give rationale to support his conclusion. On September 13, 2006 he characterized
appellant’s job as “relatively laborious” and “strenuous,” but noted that his physical examination
was essentially normal and did not discuss the specific factors of employment that he believed
caused appellant’s condition or present detailed reasoning to support his opinion that appellant’s
condition was work related. Accordingly, the Board finds that Dr. Bands’ reports are not
sufficiently rationalized to support causal relationship between a diagnosed condition and
specific employment factors.
Appellant provided reports from Dr. Zamarin. In his March 12, 2007 report, Dr. Zamarin
noted that he referred to appellant’s statement regarding his employment and stated that
appellant’s degenerative changes, as shown on the September 12, 2006 MRI scan, were more
severe than was normal for his age, but did not detail the basis for that conclusion or identify a
normal baseline for an individual of appellant’s age. He attributed appellant’s condition to
“many years of heavy physical and repetitive work” performed by appellant as described in
appellant’s statement but did not specifically identify particular tasks or other factors of
employment or explain precisely how they caused or aggravated appellant’s condition. The
Board has previously held that a medical report which simply restates appellant’s complaints that
he or she hurts too much to work without objective signs of disability being shown does not
constitute a rationalized medical opinion sufficient to establish causal relationship.10 Because
Dr. Zamarin merely noted that appellant had provided a statement describing his work
conditions, without making specific findings of his own, identifying factors of employment and
relating them to his condition and supporting his conclusions with reasoned explanation, the
Board finds that Dr. Zamarin’s March 12, 2007 report is insufficiently rationalized to establish a
7

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

8

John W. Montoya, 54 ECAB 306 (2003).

9

Judy C. Rogers, 54 ECAB 693 (2003).

10

John L. Clark, 32 ECAB 1618; see also William A. Archer, 55 ECAB 674 (2004); Dennis M. Mascarenas,
49 ECAB 215 (1997).

5

causal relationship between appellant’s diagnosed condition and his employment factors.
Appellant also submitted a May 9, 2007 work capacity evaluation from Dr. Zamarin, but this
document did not further address causal relationship.11
Appellant also submitted several other reports, including a September 12, 2006 lumbar
MRI scan from Dr. Sortur, August 31 and December 5, 2006 notes from Ms. Sipala, a nurse
practitioner, and a December 1, 2006 report from Ms. Mathwich, a physical therapist. The MRI
scan report is diagnostic in nature and does not address causal relationship. As noted, a medical
report that does not contain an opinion on causal relationship is of no probative value on that
issue.12 Because Ms. Sipala is a nurse and Ms. Mathwich is a physical therapist, their reports are
not probative on the issue of causal relationship. The Board has held that causal relationship is a
medical question that can be resolved only by rationalized medical opinion evidence.13 Because
neither Ms. Sipala, a nurse practitioner14 nor Ms. Mathwich, a physical therapist,15 is a physician
pursuant to the Act,16 neither is competent to render a medical opinion. Consequently, their
reports are not probative on the medical issue of causal relationship.
The Office referred appellant to Dr. Smith for a second opinion. He reviewed the
evidence and conducted a thorough physical examination. Dr. Smith found satisfactory spinal
range of motion and no soft tissue abnormalities, noting that appellant’s MRI scan also revealed
no soft tissue abnormalities. He noted that Dr. Bands and Dr. Zamarin also recorded essentially
normal findings on physical examination and that appellant’s MRI scan results were consistent
with arthritis, which was normal for appellant’s age. Dr. Smith opined that appellant had
longstanding degenerative disc disease, which was not work related. The Board finds that
Dr. Zamarin’s report was well reasoned and explained his conclusion, which was based on the
lack of physical examination findings and on his reading of appellant’s MRI scan, that
appellant’s condition was an age-related, degenerative condition and was not related to his
employment. Dr. Zamarin found no basis on which to attribute any diagnosed condition to
appellant’s employment.
On appeal, appellant asserts that the Office should have found a conflict in the medical
evidence between Dr. Zamarin and Dr. Smith and referred him for an independent medical
examination to resolve the conflict. The Board notes that a simple disagreement between two
physicians does not, in and of itself, establish a conflict in the medical evidence. To constitute a
11

See, e.g., Charles H. Tomaszewski, 39 ECAB 461, 467-68 (1988) (medical evidence which does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
12

Id.

13

Steven S. Saleh, 55 ECAB 169 (2003).

14

Paul Foster, 56 ECAB 208 (2004).

15

Jennifer L. Sharp, 48 ECAB 209 (1996); Thomas R. Horsfall, 48 ECAB 180 (1996); Barbara J. Williams,
40 ECAB 649 (1988).
16

See 5 U.S.C. § 8101(2). This subsection defines the term “physician.” See also Charley V.B. Harley, 2 ECAB
208, 211 (1949) (where the Board held that medical opinion, in general, can only be given by a qualified physician).

6

conflict in medical opinion, the opposing physicians’ reports must be of virtually equal weight
and rationale.17 Here, Dr. Smith provided a well-reasoned opinion explaining that in light of
appellant’s essentially normal physical examination findings and his age-related changes as
shown on the MRI scan, his condition did not appear to be work related. Dr. Zamarin, however,
did not clearly identify employment factors to which he attributed appellant’s condition nor did
he explain precisely how any such factors caused or aggravated a diagnosed. Therefore,
Dr. Zamarin’s and Dr. Smith’s reports are not of virtually equal weight and rationale and the
Office properly found no conflict in the medical evidence.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
developed an occupational disease in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the August 10 and May 14, 2007 and December 18,
2006 decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: March 20, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

17

John D. Jackson, 55 ECAB 465 (2004).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
U.S. POSTAL SERVICE, PERFORMANCE
CLUSTER, Boston, MA, Employer
__________________________________________

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Appearances:
Cornelius J.P. Sullivan, for the appellant
No appearance, for the Director

Docket No. 11-1008
Issued: November 15, 2011

Oral Argument October 18, 2011

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 16, 2011 appellant filed a timely appeal from the February 17, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) terminating his
compensation. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of his case.
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation effective
November 27, 2005 on the grounds that he refused an offer of suitable work.
FACTUAL HISTORY
In early 2005, OWCP accepted that appellant, then a 63-year-old mechanic, sustained a
work-related temporary aggravation of a preexisting varicose vein condition of his right leg.
Appellant received compensation for periods of disability.
1

20 C.F.R. § 8101 et seq.

In early October 2005, the employing establishment offered appellant a job as a modified
mail processing equipment (MPE) mechanic. The job description for the offered position
indicated that there would be restrictions on various activities, including the number of hours a
day appellant could stand, walk and lift. Appellant did not accept the modified MPE mechanic
position.
In a November 22, 2005 decision, OWCP terminated his compensation effective
November 27, 2005 on the grounds that he refused an offer of suitable work. It found that the
medical evidence of record showed that appellant could perform the offered position.
In decisions dated July 19, 2006, February 14 and August 27, 2008, OWCP affirmed the
termination of appellant’s monetary compensation effective November 27, 2005 on the grounds
that he refused an offer of suitable work. In a May 1, 2009 decision, it denied his request for
merit review of his claim.
Appellant filed an appeal with the Board which included a request for oral argument. On
June 23, 2010 the Board issued an order granting his request.
On August 9, 2010 the Director of OWCP filed a motion to reverse, remand and cancel
oral argument. The Director acknowledged that the evidence did not establish that appellant had
refused an offer of suitable work as OWCP did not consider all of his current conditions in
evaluating the suitability of the modified MPE mechanic position. Upon remand, OWCP would
reinstate appellant’s compensation upon receipt of a completed (Form CA-1032) indicating
whether he had earnings during the period in question. It would prepare a statement of accepted
facts and refer him for a second opinion examination in order to determine the nature and extent
of any remaining employment-related disability. The Director also advised that further
development was required regarding the issue of whether the facility at which the offered
position was located required extensive walking.
In an August 19, 2010 order, the Board reversed OWCP’s August 27, 2008 and May 1,
2009 decisions and canceled the oral argument scheduled for September 9, 2010. The Board
remanded the case for further development consistent with the Director’s August 9, 2010 motion.
On remand, OWCP referred appellant to Dr. David R. Campbell, a Board-certified
vascular surgeon, for an opinion on his ability to work, including his ability to work in the
modified MPE mechanic position offered in October 2005. Dr. Campbell provided reports dated
January 12 and 28, 2011. He found that appellant was capable of performing the modified MPE
mechanic position.2 The record contains a Form CA-1032 completed by appellant on October 4,
2010 in which he indicated that he had not worked in the 15 months prior to the completion of
the form. It does not appear from the record that OWCP reinstated appellant’s compensation.
In a February 17, 2011 decision, OWCP noted that it had carried out evidentiary
development as instructed by the Board and found that it had “determined that the record
evidence does not support entitlement to wage[-]loss benefits under [FECA] for your claimed
2

Dr. Campbell stated, “It is my opinion upon review of the records as of October 12, 2005, that [appellant]
should have been able to work in the modified limited-duty job offered to him.”

2

disability.” It discussed Dr. Campbell’s reports and stated, “[a]ccordingly, the weight of the
medical evidence of record supports the prior decision of [OWCP] in terminating your
compensation based on your refusal of a suitable job offer.”
LEGAL PRECEDENT
Section 8106(c)(2) of FECA provides in pertinent part, “A partially disabled employee
who ... (2) refuses or neglects to work after suitable work is offered ... is not entitled to
compensation.”3 However, to justify such termination, OWCP must show that the work offered
was suitable and must inform the claimant of the consequences of refusal to accept such
employment.4 An employee who refuses or neglects to work after suitable work has been
offered to him has the burden of showing that such refusal to work was justified.5
OWCP regulations state that in determining what constitutes suitable work for a
particular employee with a disability, it considers the employee’s current physical limitations,
whether the work is available within the employee’s demonstrated commuting area, the
employee’s qualifications to perform such work and other relevant factors.6
ANALYSIS
In its August 19, 2010 order, the Board reversed OWCP’s August 27, 2008 merit
decision which affirmed its prior termination of appellant’s compensation effective
November 27, 2005 on the grounds that he refused an offer of suitable work. The reversal was
based on the August 9, 2010 motion of the Director of OWCP which acknowledged that the
evidence did not establish that appellant refused an offer of suitable work. OWCP did not
consider all of appellant’s current conditions in evaluating the suitability of the modified MPE
mechanic position. It noted his compensation would be reinstated upon receipt of a completed
Form CA-1032 addressing any earnings during the period in question. Further development
would be carried out, including referral for a second opinion examination and whether the
facility at which the offered position was located required extensive walking.

3

5 U.S.C. § 8106(c)(2).

4

T.T., 58 ECAB 296 (2007).

5

20 C.F.R. § 10.517; see Catherine G. Hammond, 41 ECAB 375, 385 (1990).

6

See M.M., 58 ECAB 567 (2007). See also T.S., 59 ECAB 490 (2008).

3

Upon remand, OWCP did not reinstate appellant’s compensation despite the Board’s
reversal of the termination of appellant’s compensation based on the Director’s motion.
Appellant completed a Form CA-1032 on October 4, 2010 in which he indicated that he had not
worked in the 15 months prior to the completion of the form. OWCP further developed the
medical evidence but essentially found that the November 2005 termination was valid based on
the medical opinion of Dr. Campbell, a Board-certified vascular surgeon obtained in
January 2011.
The Board finds that OWCP’s November 2005 termination decision was previously
reversed. OWCP may not retroactively “cure” such reversal of such a termination by presenting
medical evidence in 2011 when it was not established that the position offered in 2005
considered all his medical conditions. When terminating compensation for refusal of suitable
work, it must present contemporaneous medical evidence and provide due process safeguards.7
OWCP did not comply with these requirements. The Board found that it did not properly
terminate appellant’s compensation effective November 27, 2005 on the grounds that he refused
an offer of suitable work as acknowledged by the Director.8
For these reasons, the February 17, 2011 decision of OWCP is reversed. OWCP shall
provide appellant with a Form CA-1032 and, upon completion of such a form, shall reinstate his
compensation.
CONCLUSION
The Board finds that OWCP improperly terminated appellant’s compensation in the
February 17, 2011 decision.

7

See supra notes 4 and 6.

8

The Board notes that, in attempting to find a refusal of suitable work on February 17, 2011 OWCP did not
provide appellant notice of its finding that the offered position was suitable or remained available. See Y.A., 59
ECAB 701 (2008); Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB 818 (1992).

4

ORDER
IT IS HEREBY ORDERED THAT the February 17, 2011 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: November 15, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.C., Appellant
and
U.S. POSTAL SERVICE, SAINT PETERS POST
OFFICE, St. Peters, MO, Employer
__________________________________________

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

Docket No. 20-0302
Issued: November 12, 2020

Case Submitted on the Record

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

JURISDICTION
On November 25, 2019 appellant filed a timely appeal from a September 24, 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 $14,822.09 for the period December 28, 2018 through April 27, 2019 due to receipt of
duplicate schedule award compensation; and (2) whether OWCP properly determined that

1

5 U.S.C. § 8101 et seq.

2
The Board notes that following the September 24, 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.

appellant was at fault in the creation of the overpayment thereby precluding waiver of recovery of
the overpayment.
FACTUAL HISTORY
On February 1, 2014 appellant, then a 35-year-old clerk, filed a notice of traumatic injury
alleging that she sustained bilateral knee and back injuries on that date when she fell on ice in the
employing establishment parking lot while in the performance of duty. OWCP accepted the claim
for lumbosacral, cervical, bilateral knee and leg sprains, and tear of the right knee lateral meniscus.
Appellant underwent an OWCP-authorized right knee arthroscopy on July 24, 2014 and an
authorized left knee arthroscopy on June 1, 2017. OWCP paid her intermittent wage-loss
compensation on the supplemental rolls as of March 27, 2014.
On January 19, 2019 appellant filed a claim for a schedule award (Form CA-7).
By decision dated March 6, 2019, OWCP denied appellant’s schedule award claim. On
April 4, 2019 appellant requested reconsideration.
An April 25, 2019 memorandum of a telephone call (Form CA-110) reflects that an OWCP
representative left a voice mail for appellant informing her that there had been a computer error
and that while she should have been paid for nine percent permanent impairment of the left lower
extremity, approximately $22,002.50, she may have received a payment in excess of that amount.
Appellant was also advised that this was “just a courtesy call” to let her know that some monies
should be kept in reserve as an overpayment would be established.
On April 26, 2019 OWCP paid appellant schedule award compensation in the net amount
of $33,310.89 for the period June 29, 2018 through March 30, 2019. On April 27, 2019 it paid her
schedule award compensation in the net amount of $3,446.00 for the period March 31 through
April 27, 2019.
By decision dated May 3, 2019, OWCP granted appellant a schedule award for nine percent
permanent impairment of the left lower extremity. The award was in the amount of $21,934.80
and ran for a period of 25.92 weeks from June 29 through December 27, 2018. This decision also
noted that appellant had received payment in excess of the schedule award and she would be
notified of the overpayment under separate cover.
In a preliminary determination dated May 3, 2019, OWCP notified appellant that she had
received an overpayment of compensation in the amount of $14,822.09 for the period
December 28, 2018 through April 27, 2019 because she was overpaid for her schedule award. It
explained that she received $14,822.09 in error because payment of her nine percent schedule
award had been extended from the correct end date of December 27, 2018 to April 27, 2019,
creating an overpayment for the period December 28, 2018 through April 27, 2019. OWCP
advised appellant that she was without fault in the creation of the overpayment because it had
created the error and it had not been shown she had actual knowledge of the calculation error. It
informed her of her review rights and instructed her to complete an enclosed overpayment recovery
questionnaire (Form OWCP-20) and submit supporting documentation within 30 days.
In a memorandum to the file dated May 6, 2019, a claims examiner noted that appellant’s
schedule award was supposed to be paid for nine percent permanent impairment of the left lower
2

extremity, with a start date of June 29, 2018 for a period of 181.44 days (25.92 weeks) with an end
date of December 27, 2018. An error extended the period of the award. As such, there was an
overpayment for the period December 28, 2018 through April 27, 2019. The claims examiner
noted that appellant had been paid $33,310.89 initially and $3,446.00 subsequently on this
schedule award, totaling compensation in the amount of $36,756.89. The total schedule award
payment for 181.44 days was $21,934.80. The difference between these two figures, $14,822.09,
represented the amount of the overpayment.
In a printout from the Automated Compensation Payment System (ACPS) dated May 2,
2019, OWCP documented that appellant had been paid an excess of $14,822.09 for the period
December 28, 2018 through April 27, 2019 over the amount to which she was entitled under the
schedule award decision of May 3, 2019.
On May 16, 2019 appellant requested a decision based on the written evidence regarding
possible waiver of recovery of the overpayment. She argued that she should be able to keep the
overpaid amount because she was without fault in creation of the overpayment. Appellant
submitted a completed Form OWCP-20 outlining her income, assets, and expenses, including
supporting documentation.
OWCP issued a second preliminary determination on July 2, 2019. The overpayment
amount remained the same at $14,822.09 for the period December 28, 2018 through
April 27, 2019. OWCP however advised appellant that she was at fault in the creation of the
overpayment, because she accepted a payment she knew or reasonably should have known was
incorrect. It noted that it had placed her on notice of the overpayment of compensation by
telephone call on April 25, 2019. OWCP again informed appellant of her review rights and
instructed her to complete an enclosed Form OWCP-20 with supporting documentation within 30
days.
Appellant, on July 8, 2019, requested that OWCP make a decision based on the written
evidence regarding the issues of fault and waiver of recovery of the overpayment. She enclosed
her prior response to OWCP’s preliminary determination dated May 3, 2019.
By decision dated September 24, 2019, OWCP finalized the preliminary overpayment
decision, finding that appellant was overpaid in the amount of $14,822.09 for the period
December 28, 2018 through April 27, 2019 because she received continued schedule award
compensation after her schedule award had expired on December 27, 2018. It found that appellant
was at fault in the creation of the overpayment, because she had received a compensation payment
deposited by electronic funds transfer (EFT) and over 30 days had elapsed since the EFT deposit
was made; and because the dates of the schedule award overlapped with the ending date and she
had been placed on notice that she was not entitled to compensation after December 27, 2018.
OWCP instructed that the overpayment be recovered in full.

3

LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA3 and its implementing regulations4 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. Section 10.404 of the
regulations provides that compensation is provided for specified periods of time for the permanent
loss or loss of use of certain members.5 FECA provides for 288 weeks of compensation for 100
percent loss or loss of use of a lower extremity6 and the implementing regulation provides that
compensation for proportionate periods of time is payable for partial loss.7
OWCP’s procedures provide that an overpayment is created when a schedule award
expires, but compensation continues to be paid.8
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $14,822.09 for the period December 28, 2018 through
April 27, 2019.
OWCP granted appellant a schedule award for nine percent permanent impairment of the
left lower extremity on May 3, 2019 for the period June 29 through December 27, 2018. The
Board has reviewed the evidence of record and concludes that nine percent of the 288 weeks of
compensation allowable for total loss of use of a lower extremity equals 25.92 weeks of
compensation entitlement. Appellant was therefore only entitled to receive compensation through
December 27, 2018. The evidence of record establishes that OWCP continued to pay appellant
schedule award compensation after December 27, 2018, the date the award expired. Consequently,
the $14,822.09 in compensation received for the period December 28, 2018 through April 27, 2019
constituted an overpayment of compensation.
The Board accordingly finds that OWCP has properly determined the fact and amount of
the overpayment.
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
3

Supra note 1 at § 8107.

4

20 C.F.R. § 10.404.

5

Id.

6

5 U.S.C. § 8107(c)(2).

7

20 C.F.R. § 10.404.

8

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.2(c)
(May 2004).

4

conscience.”9 A claimant who is at fault in the creation of the overpayment is not entitled to
waiver.10 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.11
With respect to whether an individual is without fault, section 10.433(b) of OWCP’s
regulations provide that whether or not OWCP determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those circumstances
and the individual’s capacity to realize that he or she is being overpaid.12
ANALYSIS -- ISSUE 2
The Board finds that OWCP improperly determined that appellant was at fault in the
creation of the $14,822.09 overpayment.
In Tammy Craven,13 the Board explained that an employee who receives payment from
OWCP in the form of a direct deposit may not be at fault for the first incorrect deposit into his or
her account since at the time of acceptance, which occurs at the time of receipt of the direct deposit,
the employee may lack requisite knowledge. The Board has recognized that, in the case of EFTs,
an employee would not receive notification of the date and amount of payment until after the
deposit was made and the overpayment created.14 Because fault is defined by what the claimant
knew or should have known at the time of acceptance, one of the consequences of EFTs is that the
claimant lacks the requisite knowledge at the time of the first incorrect payment.15 The Board has
previously also held that receiving one or two erroneous direct deposit payments does not
necessarily create the requisite knowledge to find that a claimant was at fault in the creation of the
overpayment.16
Under the facts and circumstances of this case, the Board finds that there is no sufficient
documentation or other evidence to demonstrate that appellant had knowledge at the time she
received the closely timed April 26 and 27, 2019 direct deposits from OWCP that the payments
9

5 U.S.C. § 8129(b).

10

See C.Y., Docket No. 18-0263 (issued September 14, 2018).

11

20 C.F.R. § 10.433(a).

12

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

13

Docket No. 05-0249 (issued June 20, 2005), Order Granting Petition for Reconsideration and Reaffirming Prior
Decision, Docket No. 05-0249 (issued July 24, 2006).
14

L.L., Docket No. 19-1690 (issued February 25, 2020); see J.H., Docket No. 15-0195 (issued March 17, 2015).

15

L.L., id; George A. Hirsch, 47 ECAB 520 (1996).

16

K.K., Docket No. 19-0978 (issued October 21, 2019); see D.B., Docket No. 16-0258 (issued February 1, 2016);
W.P., 59 ECAB 514 (2008).

5

were incorrect, or that a reasonable period of time passed during which she could have reviewed
bank statements or been informed of the incorrect payment. While an OWCP representative left
a voice mail message for appellant on April 25, 2019 that an overpayment in some amount had
been created, prior to actual payment by EFT, the schedule award decision containing the precise
period and amount of the schedule award compensation to which appellant was actually entitled
was not issued until May 3, 2019, after the EFT transfers had been made. Under these
circumstances, the voice mail message alone is insufficient to establish that appellant knew prior
to issuance of the actual schedule award decision that she had received an overpayment of
compensation to which she was not entitled. The Board thus finds that appellant was without fault
in in the creation of the overpayment.
The Board will, therefore, reverse OWCP’s finding of fault and remand the case for
consideration of whether appellant is entitled to a waiver of recovery of the overpayment. After
such further development as OWCP may deem necessary, it shall issue a de novo decision on the
issue of waiver of recovery of the overpayment.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $14,822.09 for the period December 28, 2018 through
April 27, 2019 due to receipt of duplicate schedule award compensation. The Board further finds
that OWCP improperly determined that appellant was at fault in the creation of the overpayment
of compensation.

6

ORDER
IT IS HEREBY ORDERED THAT the September 24, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed in part and reversed in part and the case is remanded
for further proceedings consistent with this decision of the Board.
Issued: November 12, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7