United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Dublin, CA, Employer
__________________________________________

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

Docket No. 06-2155
Issued: March 20, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 25, 2006 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decision dated July 14, 2006. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant’s July 27, 2004 emotional condition claim is timely
pursuant to 5 U.S.C. § 8122.
FACTUAL HISTORY
On July 27, 2004 appellant, a 45-year-old corrections officer, filed an occupational
disease claim alleging that he developed post-traumatic stress disorder due to factors of his
federal employment. He stated that he first became aware of his condition and first related it to
his federal employment on May 1, 2004. On the reverse of the form, appellant’s supervisor
indicated that appellant stopped work on March 1, 1995 and first reported his condition to his
supervisor on May 1, 2004.

The Office requested additional factual and medical evidence from appellant by letter
dated September 15, 2004. Appellant responded and stated that on or about May 1, 2004 he
discussed his concerns regarding his tendency to withdraw from people and relationships with a
psychiatrist, Dr. Paul Malarik, who at that point attributed his stressors to his experiences and
duties as a correctional officer. He stated that everyday at the employing establishment he felt
that he could be attacked or killed. Appellant described the employment duties that he felt
caused or contributed to his condition. He stated that he was not aware of his emotional
condition while employed.
By decision dated May 12, 2005, the Office denied appellant’s claim finding that it was
not filed in a timely manner. The Office noted that appellant was removed by his employer on
March 1, 1995 and that he did not file his claim until July 27, 2004 more than nine years after the
date of last exposure to employment factors. The Office found that his supervisor did not have
timely notice of his emotional condition within 30 days of March 1, 1995.
Appellant requested an oral hearing on May 17, 2005. On August 26, 2006 he testified
that his symptoms slowly came on and he had no idea what they were until 2005 when his
symptoms intensified. Appellant noted that he constantly felt vulnerable to attack and needed to
remain continuously alert for danger. He noted that his social interactions continued to be
limited after his employment ended in 1995 and that he lost friends due to his suspicions of
crowds and smaller groups of people. Appellant first sought medical treatment for his symptoms
in 2004. He stated that in 2004 he first thought his symptoms could be due to his employment.
Appellant stated that he felt like someone was going to suddenly punch him in the face. In
response to the hearing representative’s questioning, appellant noted that in 1995 his feelings did
not seem inappropriate, but after he left the employing establishment environment, appellant
slowly began to wonder why he had those feelings.
Following the oral hearing, appellant submitted medical notes from Dr. Malarik. These
notes indicated that he had sought a psychiatric evaluation due to a positive depression screen
and possible post-traumatic stress disorder beginning on April 28, 2004. Appellant obtained
treatment on May 25, July 20, August 31 and October 26, 2004.
By decision dated July 14, 2006, the hearing representative found that appellant
reasonably should have been aware of his symptoms as he was clearly aware that he worked in a
stressful environment during his active employment. The hearing representative found that
appellant’s date of last exposure was March 1995 and the time limitation began to run at that
time.
LEGAL PRECEDENT
In cases of injury on or after September 7, 1974, section 8122(a) of the Federal
Employees’ Compensation Act provides that an original claim for compensation for disability or
death must be filed within three years after the injury or death. Compensation for disability or

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death, including medical care in disability cases, may not be allowed if a claim is not filed within
that time unless:
“(1) the immediate superior had actual knowledge of the injury or death within 30
days. The knowledge must be such as to put the immediate superior reasonably
on notice of an on-the-job injury or death; or
“(2) written notice of injury or death as specified in section 8119 of this title was
given within 30 days.”1
The three-year time period begins to run from the time the employee is aware or by the
exercise of reasonable diligence should have been aware, that his or her condition is causally
related to the employment. For actual knowledge of a supervisor to be regarded as timely filed,
an employee must show not only that the immediate supervisor knew that he or she was injured,
but also knew or reasonably should have known that it was an on-the-job injury.2
Even if an original claim for compensation for disability or death is not filed within three
years after the injury or death, compensation for disability or death may be allowed if written
notice of injury or death as specified in section 8119 was given within 30 days. Section 8119
provides that a notice of injury or death shall be given within 30 days after the injury or death; be
given to the immediate superior of the employee by personal delivery or by depositing it in the
mail properly stamped and addressed; be in writing; state the name and address of the employee;
state the year, month, day and hour when and the particular locality where the injury or death
occurred; state the cause and nature of the injury or in the case of death, the employment factors
believed to be the cause, and be signed by and contain the address of the individual giving the
notice.3 Actual knowledge and written notice of injury under section 8119 serve to satisfy the
statutory period for filing an original claim for compensation.4
In the case of occupational disease, the time for filing a claim begins to run when the
employee first becomes aware or reasonably should have been aware, of a possible relationship
between his condition and his employment. When an employee becomes aware or reasonably
should have been aware that he has a condition which has been adversely affected by factors of
his federal employment, such awareness is competent to start the limitation period even though
he does not know the precise nature of the impairment or whether the ultimate result of such
affect would be temporary or permanent.5 Where the employee continues in the same
employment after he or she reasonably should have been aware that he or she has a condition
which has been adversely affected by factors of the federal employment awareness, the time

1

5 U.S.C. § 8122(a).

2

Duet Brinson, 52 ECAB 168 (2000).

3

Larry E. Young, 52 ECAB 264 (2001).

4

Aura L. Harrison, 52 ECAB 515 (2001).

5

Larry E. Young, supra note 3.

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limitation begins to run on the date of the last exposure to the implicated factors.6 The
requirement to file a claim within three years is the claimant’s burden and not that of the
employing establishment.7
ANALYSIS
Appellant, a corrections officer, alleged that his employment duties resulted in posttraumatic stress disorder. He asserted that he was unaware of his condition and its relationship to
his employment duties until May 1, 2004. The Office found that the time limitation for filing a
claim began to run in March 1995, the date of appellant’s last exposure to employment factors.
As appellant did not file a claim until July 27, 2004, the Office concluded that his claim was not
timely filed within the three-year period of limitation.
Appellant has maintained that he had no knowledge that his federal employment resulted
in an emotional condition until his diagnosis in 2004. He testified that, while working at the
employing establishment his fears and feelings seemed appropriate. Appellant noted that it was
only after leaving the employing establishment that he gradually began to feel that his emotions
and responses were inappropriate. He also indicated that his symptoms gradually intensified
after he left the employing establishment. Appellant submitted treatment notes from Dr. Malarik
indicating that he sought psychiatric treatment beginning on April 28, 2004 due to a positive
depression screen. Dr. Malarik diagnosed possible post-traumatic stress disorder at that time.
The Board finds that the evidence does not establish that appellant was aware of the
causal relationship between his federal employment and his diagnosed emotional condition of
post-traumatic stress disorder until April 28, 2004. There is no medical evidence indicating that
appellant sought treatment for his condition prior to this date and no evidence that he was aware
of his emotional condition or its relationship to his employment before that date. Therefore, the
evidence does not support that he had reason to be aware of his condition and its relationship to
his employment.
The hearing representative found that appellant should have been aware of his condition
as of 1995 as he had worked in a stressful environment. However, appellant testified that while
he was working at the employing establishment, his reactions seemed normal to him. He noted
that only after he was no longer working at the employing establishment for a period of time did
he gradually begin to realize that his concerns regarding ever present physical attacks were
limiting his social interactions, adversely impacting him and that his concerns and reactions were
possibly abnormal. In a psychological condition claim, such as this one, the Board
acknowledges that the insight of appellant into the appropriateness of his actions, emotions and
personal interactions might well be limited as a direct consequence of the diagnosed condition of
post-traumatic stress disorder. The Board further finds that it could be difficult for a claimant to
become aware and accept that his feelings were the result of an impairing emotional condition.8
6

Id.

7

Debra Young Bruce, 52 ECAB 315 (2001).

8

Mitchell Murray, 53 ECAB 601 (2002).

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There is no medical opinion evidence or other relevant evidence establishing that appellant
should have been aware of his emotional condition prior to 2004. The hearing representative’s
opinion is based solely on the supposition that all persons who are subjected to stressful
circumstances would be continuously open to the possibility that their behaviors, reactions and
emotions are abnormal. This supposition exceeds the standard of reasonable diligence stated
above. Therefore, the Board finds that appellant’s claim was timely filed within the three-year
period after April 28, 2004 during which he was first diagnosed with his condition and made
aware of its relationship to his federal employment.
CONCLUSION
The Board finds that appellant’s claim was timely filed in this latent disability case.
There is no evidence to support the Office’s conclusion that he should have reasonably been
aware of his emotional condition and its relationship to his employment before his diagnosis and
treatment on April 28, 2004.
ORDER
IT IS HEREBY ORDERED THAT the July 14, 2006 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: March 20, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 14-1591
Issued: December 24, 2014

Case Submitted on the Record

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

JURISDICTION
On July 8, 2014 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ (OWCP) decisions dated March 26 and June 2, 2014 which denied her claim for an
employment-related injury. 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 met her burden of proof to establish that she sustained an
injury in the performance of duty on January 29, 2014, as alleged.
On appeal, appellant addressed the factual history of her injury, including the fact that she
left work at 5:00 p.m. and was involved in a motor vehicle accident at 7:00 p.m. She was
traveling to her home at approximately 10 miles per hour due to icy road conditions.
FACTUAL HISTORY
On February 11, 2014 appellant, then a 42-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that at 7:00 p.m. on January 29, 2014 she sustained injuries to her
1

5 U.S.C. § 8101 et seq.

right arm, shoulder and neck as a result of a motor vehicle accident. She was traveling down
Seven Creeks Highway when she hit a patch of ice in the road and slid into a ditch. Appellant’s
regular tour of duty was 8:00 a.m. to 5:00 p.m., Tuesday through Saturday.
An OWCP Form CA-16, authorization for examination, was issued by the employing
establishment on January 29, 2014. The form did not indicate the name of the medical facility or
physician appellant was authorized to visit.
Appellant submitted a January 30, 2014 report from Columbus Regional Healthcare
System. She was diagnosed with a shoulder strain.
In a duty status report dated February 3, 2014, Dr. Richard G. Berry, a Board-certified
internist, listed a history that appellant injured her neck, shoulder and arm in a motor vehicle
accident on January 29, 2014. He excused her from work from January 31 to February 3, 2014.
On February 4, 2014 appellant’s supervisor stated that appellant completed her route on
January 29, 2014 and signed out at 5:00 p.m. At 7:24 p.m. she received a text message from
appellant that her car slid into a ditch while driving home.
In a February 24, 2014 letter, OWCP advised appellant that the evidence of record was
not sufficient to establish that she was injured in the performance of duty. It afforded her 30
days to submit additional evidence and respond to its inquiries.
Appellant submitted a narrative statement describing that she left work at 5:00 p.m. on
January 29, 2014. In a March 10, 2014 report, Dr. Berry diagnosed a muscle strain due to a
motor vehicle accident.
On March 25, 2014 OWCP held a conference with appellant’s supervisor, who advised
that on January 29, 2014 appellant was on her way home from work in her private vehicle when
she encountered ice in the road and slid into a ditch. The supervisor confirmed that the roads
were extremely icy on that date and advised that appellant lived 35 miles from the duty station.
By decision dated March 26, 2014, OWCP denied the claim. It found that appellant was
not in the performance of duty at the time of injury. She was not on her route or performing
duties as a rural carrier.
On April 19, 2014 appellant requested reconsideration.
statement reiterating the facts of her claim.

She submitted a narrative

By decision dated June 2, 2014, OWCP denied modification of the March 26, 2014
decision. It found that appellant’s position as a rural carrier and the use of her own vehicle as
part of her job met the exception for the premises rule, covering her commute to and from work.
OWCP found, however, that, although Seven Creeks Highway was where appellant was
reasonably expected to be, the accident took place at approximately 7:00 p.m., long after her
work shift ended at 5:00 p.m., at a time when she was not reasonably expected to be commuting
between her duty station and her home, despite the weather conditions on January 29, 2014.

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LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.2 The phrase sustained while in the
performance of duty is regarded as the equivalent of the coverage formula commonly found in
workers’ compensation laws, namely, arising out of and in the course of employment.3 To arise
in the course of employment, an injury must occur at a time when the employee may reasonably
be said to be engaged in his or her employer’s business, at a place where he or she may
reasonably be expected to be in connection with his or her employment and while he or she was
reasonably fulfilling the duties of his or her employment or engaged in doing something
incidental thereto.4
The Board has recognized as a general rule that off-premises injuries sustained by
employees having fixed hours and places of work while going to or coming from work or during
a lunch period, are not compensable, as they do not arise out of and in the course of employment.
Rather, such injuries are merely the ordinary, nonemployment hazards of the journey itself,
which are shared by all travelers.5
The Board has recognized exceptions to this general coming and going rule, which are
dependent upon the relative facts to each claim: (1) where the employment requires the
employee to travel on the highways; (2) where the employer contracts to and does furnish
transportation to and from work; (3) where the employee is subject to emergency calls, as in the
case of firemen; and (4) where the employee uses the highway to do something incidental to his
or her employment with the knowledge and approval of the employer.6
ANALYSIS
OWCP found that appellant was not in the performance of duty on January 29, 2014
when she was injured during a motor vehicle accident. The record establishes that she is a rural
carrier who completed her route on January 29, 2014 and signed out at 5:00 p.m. Appellant was
driving her personal vehicle on Seven Creeks Highway to her home, located 35 miles away from
her duty station. Due to ice in the road, she slid into a ditch at 7:00 p.m.
FECA Program Memorandum No. 142 provides that “a postal employee who uses [her]
personal vehicle in the performance of [her] duties, with the knowledge and consent of [her]
employer, is in the performance of duty while traveling in [her] vehicle to and from work and
home regardless of the type of contract under which the vehicle was provided.”7 The basic test
2

Id. at § 8102(a).

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This construction makes the statute actively effective in those situations generally recognized as properly within
the scope of workers’ compensation law. See Bernard D. Blum, 1 ECAB 1 (1947).
4

See Thomas E. Keplinger, 46 ECAB 699 (1995); see also Federal (FECA) Procedure Manual, Part 2 -- Claims,
Performance of Duty, Chapter 2.804.6 (August 1992).
5

See John M. Byrd, 53 ECAB 684 (2002); see also Gabe Brooks, 51 ECAB 184 (1999); Thomas P. White, 37
ECAB 728 (1986); Robert F. Hart, 36 ECAB 186 (1984).
6

See Melvin Silver, 45 ECAB 677 (1994); Estelle M. Kasprzak, 27 ECAB 339 (1976).

7

FECA Program Memorandum No. 142, Duty Status of Employees While Traveling To and From Work and
Home (August 31, 1971).

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of coverage in each case of reported injury sustained while an employee is traveling to or from
home and work in a personal vehicle is whether the employing establishment knew about and
consented to the employee’s use of a personal vehicle to perform his or her duties.8 The facts
pertaining to the use of a privately-owned vehicle must be developed and each case must meet
the other requirements that generally apply to establish that the employee was in the performance
of duty, i.e., traveling the most direct route.9
The Board finds that appellant is a rural carrier who was traveling from work to home in
her personal vehicle with the knowledge and consent of her employing establishment; however,
her January 29, 2014 injury did not occur in the performance of duty. Even if appellant’s travel
is covered under FECA, the timing of the injury must be within a reasonable interval before or
after her work shift and she must be engaged in preparatory or incidental acts that benefit her
employer. In B.B.,10 appellant had arrived to work 1.25 hours prior to her scheduled shift when
she fell in a parking lot. The Board found that she was not in the performance of duty as her
arrival time was not within a reasonable interval of her shift nor was she engaged in any
preparatory or incidental acts of employment. In this case, appellant’s presence on the highway
two hours after she signed out of work was not within a reasonable interval of her shift as she
lived 35 miles away from the duty station. Moreover, at the time of her injury, she was not
engaged in any preparatory or incidental acts pertaining to her employment. The Board finds
that appellant was not in the performance of duty when she was involved in a motor vehicle
accident on the evening of January 29, 2014.
On appeal, appellant reiterated that she was driving to her home at approximately 10
miles per hour due to icy road conditions. The Board finds that her injury was an ordinary
nonemployment hazard of the journey itself, which is shared by all travelers. The ice was a
hazard common to all travelers and not a hazard related to appellant’s employment.11 The Board
has generally held that conditions caused by weather, including ice, are dangers inherent to the
commuting public and do not constitute special hazards.12 In R.O.,13 the Board found that the
employee’s off-premises slip and fall on an icy public sidewalk did not arise in the performance
of duty as it was not a special hazard of the route but a hazard shared by all commuters. The
Board noted that the hazard that caused injury, i.e., ice and snow, was a hazard commonly
encountered by pedestrians in Washington, DC during the winter months. The ice appellant

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The Board notes that FECA Program Memorandum No. 104, Rural Letter Carriers Driving Their Own Vehicles
(October 24, 1969) gave as a qualification for coverage that rural carriers be required by the employer to furnish a
vehicle for the handling of mail. While this qualification is still valid, it is no longer necessary under Memorandum
No. 142 “so long as the employer knew and approved of the rural carriers’ use of their personal vehicles in the
performance of their duties.” Id.
9

Id.

10

Docket No. 08-1338 (issued November 4, 2008).

11

See Jimmie Brooks, 54 ECAB 248 (2002).

12

See G.N., Docket No. 12-261 (issued July 23, 2012).

13

Docket No. 08-2088 (issued May 18, 2009). See generally, Harriet Williams (Harrison O. Williams), 20
ECAB 327 (1969) (the Board found that claimant’s death due to a motor vehicle accident on his way to work did not
come within exceptions to the off-premises injury rule. It explained that, “the ordinary act of travel to and from
one’s place of employment is not an act incidental to employment”). Id. at 329.

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encountered while driving home was not a special hazard. Appellant has failed to meet her
burden of proof to establish her claim.
The Board notes that the employing establishment issued appellant a Form CA-16 on
January 29, 2014 authorizing medical treatment. The Board has held that where an employing
establishment properly executes a Form CA-16, which authorizes medical treatment as a result of
an employee’s claim for an employment-related injury, it creates a contractual obligation, which
does not involve the employee directly, to pay the cost of the examination or treatment regardless
of the action taken on the claim.14 Although OWCP denied appellant’s claim for an injury, it did
not address whether she is entitled to reimbursement of medical expenses pursuant to the Form
CA-16. Upon return of the case record, OWCP should further address this issue.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an injury in the performance of duty on January 29, 2014, as alleged. On return of the
record, OWCP should consider the Form CA-16 issued in this case.
ORDER
IT IS HEREBY ORDERED THAT the June 2 and March 26, 2014 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: December 24, 2014
Washington, DC

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

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

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

14

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARMTMENT OF THE NAVY,
PORTSMOUTH NAVAL SHIPYARD,
Portsmouth, NH, Employer
__________________________________________

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

Docket No. 12-1848
Issued: May 15, 2013

Case Submitted on the Record

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

JURISDICTION
On August 30, 2012 appellant filed a timely appeal from a July 24, 2012 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 OWCP properly terminated appellant’s wage-loss compensation and
medical benefits effective July 29, 2012 on the grounds that he had no further disability causally
related to his August 24, 1977 employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 30, 1977 appellant, then a 30-year-old pipefitter, filed a traumatic injury claim
(Form CA-1) alleging that on August 24, 1977 he sustained a left shoulder injury from lifting a
desk. OWCP accepted the claim for strain of left shoulder and upper arm.
Appellant received intermittent compensation for continuation of pay (COP) from
August 30 to November 17, 1977 and temporary total disability compensation from
November 18, 1977 to May 10, 1978. On May 8, 1978 he was released from his treating
physician Dr. Wagdi Faris, a Board-certified orthopedic surgeon, with restrictions to his left arm.
On February 15, 1979 appellant’s compensation benefits were reduced and he began receiving
wage-earning capacity (WEC) for $136.40 per week.
OWCP referred appellant to Dr. James F. Richard, Jr., a Board-certified orthopedic
surgeon, for an independent medical examination to determine if his condition continued to
support entitlement to WEC benefits. In a September 4, 1985 report, Dr. Richards stated that
appellant did not require restrictions for sitting, walking, bending, squatting, kneeling, twisting
and standing, but could not repetitively lift over 20 pounds, reach over head, climb or push and
pull heavy weights. He opined that appellant had long reached maximum medical improvement
(MMI) and could work eight hours a day. As a result of Dr. Richard’s September 4, 1985 report,
OWCP finalized an actual earnings wage-earning decision on May 12, 1980 based on appellant’s
ability to perform his duties as a mobile home repairman.
In an October 10, 1989 follow-up examination report, Dr. Richards provided appellant
with the same work restrictions, noting that he could work eight hours a day and recommended
no additional treatment. Dr. Richards further noted that appellant could have mild cervical
arthritis and chronic rotator cuff tendinitis. A March 6, 1992 report from him stated that
appellant was not a candidate for vocational rehabilitation services. Dr. Richards found that
appellant could not work as a pipefitter because he weighed 260 pounds and would have
difficulty fitting into tight spots as well as reaching overhead and out at arm’s length.
In medical reports dated October 10, 2006 to March 23, 2009, Dr. Rodney A. Marcom, a
Board-certified osteopath, reported that appellant was injured in an employment-related incident.
In his May 2, 2007 report, he opined that appellant incurred a five percent permanent impairment
and that no significant changes or improvement were expected in the future, providing appellant
with work restrictions. In an April 9, 2008 medical report, Dr. Marcom opined that appellant
could return to work. In a March 23, 2009 report, he stated that appellant continued to
experience increased pain and debility with complaints of spasms, weakness and difficulty using
his dominant left hand and upper extremity from his past injury. Dr. Marcom noted that
appellant’s symptoms had become more pronounced since his evaluation the prior year. He
opined based on review of medical records and physical examination, that appellant had a
permanent impairment of five percent, was not expected to improve in the future and was
capable of working with work restrictions of no heavy lifting, bending, stooping, reaching
overhead and pushing and pulling heavy objects. Thus, Dr. Marcom noted that there was no
change in appellant’s physical findings during his updated March 23, 2009 examination and that
he could perform his duties as a mobile home repairmen as long as there were no assignments for
heavy labor.

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On September 6, 2011 OWCP referred appellant, a statement of accepted facts, the case
file and a series of questions to Dr. Steven Nadler, a Board-certified orthopedic surgeon, for a
second opinion medical examination. The statement of accepted facts (SOAF) noted that
appellant’s claim was accepted for strain of left shoulder from an August 24, 1977 employment
incident where he was lifting a desk. It further stated that the physical requirements of a
pipefitter included frequent pushing, pulling, kneeling, bending, squatting, crawling, sitting,
lying, stooping, climbing, prolonged walking, standing, working for prolonged periods with arms
overheard, working on staging, confined quarters and cramped positions. The SOAF also noted
that he must be able to lift 50 pounds and sometimes in excess of 50 pounds. Dr. Nadler was
asked to provide an opinion on whether appellant’s accepted condition had been resolved and
whether he could perform his date-of-injury job. It further noted that he should use the SOAF as
the only factual framework for his opinion.
In an October 18, 2011 medical report, Dr. Nadler reported that appellant complained of
left shoulder pain from an August 24, 1977 work-related injury. Appellant stated that he had
been living with the pain for approximately 35 years but never received any treatment for his
condition. After the employment injury, he stopped working as a pipefitter and worked fixing
mobile homes. Dr. Nadler provided a summary of appellant’s previous medical reports and
history. He noted a May 1978 medical report from Dr. Faris who reported that appellant had a
sprain of the left shoulder secondary to inflammatory changes. In an April 4, 1978 medical
report, Dr. Faris stated that appellant could have thoracic outlet syndrome and impingement
syndrome. Upon physical examination, Dr. Nadler noted that the left shoulder revealed no signs
of trauma. Appellant had mild discomfort in the acromioclavicular joint and subacromial space.
Dr. Nadler stated that appellant’s range of motion was good but that there were mild signs of
impingement syndrome. He diagnosed status post left shoulder sprain with secondary
impingement syndrome and answered “yes” in response to whether appellant’s accepted
condition had resolved. Dr. Nadler further stated that appellant could perform his date-of-injury
job as a pipefitter because his condition had resolved and his present symptoms were most
probably related to impingement syndrome, which developed over a period of years but was not
related to his injury at work. In a work capacity evaluation of the same date, he stated that
appellant had no limitations as a result of his work accident in 1977.
On May 30, 2012 OWCP notified appellant of a proposal to terminate his compensation
benefits and modify his loss of wage-earning capacity to zero based on Dr. Nadler’s opinion that
appellant was not experiencing any residuals or disability connected to his accepted employment
injury of left shoulder and arm sprain. It further stated that appellant’s shoulder impingement
syndrome was not work related and provided him 30 days to submit additional information.
In support of his claim, appellant submitted medical reports dated March 16, 2010 to
June 12, 2012 from Dr. Marcom, who stated that appellant continued to be unemployable in
work involving use of his left hand and arm. In his June 12, 2012 medical report, Dr. Marcom
stated that appellant continued to experience pain and debility from his August 24, 1977 injury.
He noted that appellant’s symptoms continued to grow more pronounced which interfered with
his activities of daily living. Upon physical examination, Dr. Marcom noted no significant
changes in appellant’s condition with continued impairment and deterioration of his left upper
extremity, causing increased tremors, weakness and pain. Dr. Marcom expected no significant
change or improvement in the future and stated that appellant could work with limitations of

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heavy lifting, bending, stooping, reaching overhead and pushing and pulling heavy objects. He
further stated that appellant had to cease work as a repairman due to the progressive nature of his
impairments caused by the injury compounded by his diabetes and the effects of aging.
Dr. Marcom noted that appellant remained unemployable in other forms of work which required
the use of the left hand and arm. He stated that he reviewed OWCP’s May 30, 2012 preliminary
determination and found many inconsistencies which influenced the independent evaluation done
by Dr. Nadler. Dr. Marcom stated that appellant did receive medical treatment in 2010 and
2011, despite OWCP stating otherwise and concluded that he continued to have a five percent
permanent impairment.
By decision dated July 24, 2012, OWCP terminated appellant’s medical and wage-loss
benefits effective July 29, 2012 on the grounds that the weight of the medical evidence rested
with Dr. Nadler, who found that appellant did not continue to experience residuals of his
work-related injury.2
LEGAL PRECEDENT
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.3 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.4
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.5 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition,
which require further medical treatment.6 OWCP’s burden of proof includes the necessity of
furnishing rationalized medical opinion evidence based on a proper factual and medical
background.7
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.8 When an employee cannot return to the
2

The Board notes that appellant submitted additional evidence after OWCP rendered its July 24, 2012 decision.
The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision
and therefore, this additional evidence cannot be considered on appeal. 20 C.F.R. § 510.2(c)(1); Dennis E. Maddy,
47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). Appellant may submit this evidence to
OWCP, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§ 10.606(b)(2).
3

Bernadine P. Taylor, 54 ECAB 342 (2003).

4

Id.

5

Roger G. Payne, 55 ECAB 535 (2004).

6

Pamela K. Guesford, 53 ECAB 726 (2002).

7

T.P., 58 ECAB 524 (2007); Furman G. Peake, 41 ECAB 351 (1975).

8

5 U.S.C. § 8102(a).

4

date-of-injury job because of disability due to work-related injury or disease, but does return to
alternative employment with an actual wage loss, OWCP must determine whether the earnings in
the alternative employment fairly and reasonably represent the employee’s loss of wage-earning
capacity.9
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.10 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.11
ANALYSIS
OWCP accepted that appellant sustained a left shoulder and arm sprain on
August 24, 1977. The issue is whether it properly terminated his medical benefits and
compensation for wage loss effective July 29, 2012, based on the opinion of the second opinion
examiner Dr. Nadler. The Board finds that OWCP properly terminated appellant’s medical
benefits and compensation for wage loss.
OWCP referred appellant to Dr. Nadler for a second opinion evaluation to determine the
nature and extent of his employment-related condition. Dr. Nadler reviewed the statement of
accepted facts and medical record, providing a summary of appellant’s previous medical reports
and history. He reported that appellant complained of left shoulder pain from an August 24,
1977 work-related injury. Appellant stated that he had been living with the pain for
approximately 35 years but never received treatment for it. After the injury, he stopped working
as a pipefitter and worked fixing mobile homes. Upon physical examination, Dr. Nadler found
no objective evidence of symptoms related to the accepted left shoulder and arm sprain, noting
that the left shoulder revealed no signs of trauma. Appellant had mild discomfort in the
acromioclavicular joint and subacromial space. Dr. Nadler noted that appellant’s range of
motion was good but that there were mild signs of impingement syndrome. He diagnosed status
post left shoulder sprain with secondary impingement syndrome and stated that appellant could
perform his date-of-injury job as a pipefitter because his condition had resolved. Dr. Nadler
opined that appellant’s present symptoms were most probably related to impingement syndrome
which developed over a period of years, but was not related to his injury at work. In a work
capacity evaluation of the same date, Dr. Nadler stated that appellant had no limitations as a
result of his work accident in 1977.
The Board finds that OWCP met its burden of proof to terminate appellant’s medical and
wage-loss benefits based on the October 18, 2011 report of Dr. Nadler, who reviewed appellant’s
medical history, examined him and found no objective evidence of ongoing residuals or
disability due to the accepted work-related conditions. Dr. Nadler’s report represents the weight
9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7 (October 2009).
10

Harley Sims, Jr., 56 ECAB 320 (2005); Tamra McCauley, 51 ECAB 375 (2000).

11

Id.

5

of the medical evidence and OWCP properly relied on his report in terminating appellant’s
benefits. The Board finds that he had an accurate history of the relevant facts and evaluated the
course of appellant’s condition.12 Dr. Nadler’s opinion is based on proper factual and medical
history and his report contained a detailed summary of this history. He addressed the medical
records to make his own examination findings and reached a reasoned conclusion regarding
appellant’s condition.13 At the time benefits were terminated, Dr. Nadler found no basis on
which to attribute any residuals or continued disability to appellant’s accepted left shoulder and
arm sprain. He noted that appellant’s condition had resolved and his current impingement
syndrome was not related to the original 1977 injury, which had probably developed over a
period of years. Thus, appellant required no work restrictions as a result of the 1977 left arm and
shoulder sprain. Dr. Nadler’s opinion as set forth in his October 18, 2011 report is found to be
probative and reliable. The Board finds that Dr. Nadler’s opinion constitutes the weight of the
medical evidence and is sufficient to justify OWCP’s termination of benefits for the accepted
conditions.
Subsequent to Dr. Nadler’s report, appellant submitted medical reports dated March 16,
2010 to June 12, 2012 from Dr. Marcom, appellant’s attending physician. In his June 12, 2012
report, Dr. Marcom noted that appellant continued to be unemployable in work involving use of
his left hand and arm and continued to experience pain and debility from his August 24, 1977
injury. He reported that appellant’s symptoms continued to grow more pronounced which
interfered with his activities of daily living. Upon physical examination, Dr. Marcom noted no
significant change in appellant’s condition with continued impairment and deterioration of the
left upper extremity, causing increased tremors, weakness and pain. He expected no significant
change or improvement in the future and stated that appellant could work with limitations of
heavy lifting, bending, stooping, reaching overhead and pushing and pulling heavy objects.
Dr. Marcom further noted that appellant had to cease work as a repairman due to the progressive
nature of his impairments caused by the injury and compounded by his diabetes and the effects
of aging. He noted that appellant remained unemployable in other forms of work which required
the use of the left hand and arm. Dr. Marcom stated that he reviewed OWCP’s May 30, 2012
preliminary determination and found many inconsistencies which influenced the independent
evaluation done by Dr. Nadler. He stated that appellant did receive medical treatment in 2010
and 2011, despite OWCP stating otherwise. Dr. Marcom concluded that appellant continued to
have a five percent permanent impairment.
While Dr. Marcom noted that appellant continued to be unemployable in work involving
use of his left hand and arm, he failed to address how any continuing condition or medical
restrictions and disability were causally related to the accepted strain of left shoulder and upper
arm conditions. The Board notes that Dr. Marcom’s additional June 12, 2012 medical report was
almost identical to his previous reports. While Dr. Marcom generally supported that appellant’s
continuing symptoms were due to the work injury, his opinion on causal relationship was
12

L.S., Docket No. 12-1714 (issued March 1, 2013).

13

See Michael S. Mina, 57 ECAB 379 (2006) (the opportunity for and thoroughness of examination, the accuracy
and completeness of the physician s knowledge of the facts and medical history, the care of analysis manifested and
the medical rationale expressed in support of the physician’s opinion are facts, which determine the weight to be
given to each individual report).

6

conclusory without any additional explanation as to how the accepted conditions remained
symptomatic or caused disability.14 He failed to explain why a shoulder sprain would continue
for 35 years with continued symptoms of pain and debility. Moreover, Dr. Marcom’s opinion on
the cause of appellant’s condition is equivocal as Dr. Marcom noted that diabetes and the effects
of aging were also causing his continued disability. Therefore, his reports are of diminished
probative value and insufficient to overcome the weight of Dr. Nadler’s report or to create a
medical conflict.15
The Board finds Dr. Nadler’s second opinion report is sufficiently rationalized to
establish that appellant’s employment-related left shoulder and arm sprain had resolved.16
Dr. Nadler’s opinion is based on a proper factual and medical history in that he had the benefit of
an accurate and up-to-date statement of accepted facts, provided a thorough factual and medical
history and accurately summarized the relevant medical evidence. There is no other medical
evidence contemporaneous with the termination of appellant’s benefits, which supports that he
has any continuing residuals or disability related to his accepted work-related injuries.17 Thus,
OWCP properly terminated appellant’s medical and wage-loss benefits.18
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s medical and
wage-loss benefits effective July 29, 2012.

14

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
15

Id.

16

C.S., Docket No. 12-163 (issued February 21, 2013).

17

D.R., Docket No. 12-1697 (issued January 29, 2013).

18

D.M., Docket No. 11-386 (issued February 2, 2012); Marshall E. White, 33 ECAB 1666 (1982).

7

ORDER
IT IS HEREBY ORDERED THAT the July 24, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 15, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.S., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Lexington, SC, Employer
__________________________________________

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Appearances:
David Proffitt, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1039
Issued: December 13, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 5, 2010 appellant, through her attorney, filed a timely appeal of the
November 16, 2009 merit decision of the Office of Workers’ Compensation Programs denying
her claim for total disability.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant was disabled commencing October 2, 2008 due to her
injury of that date.
On appeal counsel contends that appellant submitted sufficient medical evidence to
establish her total disability during the claimed period.
1

An Office hearing representative issued a decision dated April 15, 2010 that affirmed the Office’s November 16,
2009 decision. Under Douglas E. Billings, 41 ECAB 880 (1990), the Office’s April 15, 2010 decision is null and
void as the Office and the Board may not have concurrent jurisdiction over the same issue. See also 20 C.F.R.
§ 501.2(c)(3).

FACTUAL HISTORY
The Office accepted that on October 2, 2008 appellant, then a 38-year-old modified clerk,
sustained a right knee contusion in the performance of duty. She stopped work on that date.
In an April 30, 2009 letter, appellant described several incidents that occurred from
November 2008 to April 14, 2009 where she stumbled, experienced dizziness and fainted. She
attributed her conditions to a prior accepted employment-related cervical condition.2 Dr. Gal G.
Margalit, an attending general practitioner and hospital emergency room personnel, evaluated
appellant and referred her to a neurologist for treatment of her employment-related cervical
condition. He also referred her to a psychiatrist for treatment of her emotional condition which
she attributed to the accepted employment-related cervical condition.
On September 14, 2009 appellant filed a claim for wage-loss compensation commencing
October 2, 2008.
In medical reports dated October 30, 2008 through September 16, 2009, Dr. Margalit
advised that appellant had cervical radiculopathy, chronic pain, depression and fibromyalgia
causally related to the accepted October 2, 2008 employment injury. He opined that she was
disabled for work. In an April 24, 2009 report, he advised that her current diagnosis remained
right knee injury secondary to a contusion with probable instability due to continued episodes of
multiple falls and giving way of the knee. Dr. Margalit stated that the right knee instability
condition appeared to be a new injury. The dizziness appellant experienced when she rotated her
head caused multiple falls for which she received treatment. Dr. Margalit opined that her
cervical radiculopathy relating to cervical bulging discs was aggravated by her falls as they
tended to jar the spine. He listed findings on physical examination related to appellant’s right
and left knees. Dr. Margalit concluded that she had not reached maximum medical improvement
from the October 2, 2008 employment injury.
By letter dated September 24, 2009, the Office advised appellant about the deficiencies in
her claim. It requested that she provide additional medical evidence to support her disability for
the claimed period. Appellant was afforded 30 days to submit the requested evidence. She did
not respond.
In a November 16, 2009 decision, the Office denied appellant’s claim for compensation
commencing October 2, 2008. It found the medical evidence insufficient to establish that she
was totally disabled due to the accepted October 2, 2008 employment injury.

2

Prior to the instant claim, appellant filed a claim assigned OWCP File No. xxxxxx118 for left shoulder and
lumbar injuries she sustained while working at the employing establishment on July 26, 2004. The Office accepted
her claim for cervical and lumbar strains, post-traumatic headaches and lumbar radiculopathy.

2

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of proof to establish the essential elements of her claim by the weight of the evidence.4
For each period of disability claimed, the employee has the burden of establishing that she was
disabled for work as a result of the accepted employment injury.5 Whether a particular injury
causes an employee to become disabled for work and the duration of that disability are medical
issues that must be proved by a preponderance of probative and reliable medical opinion
evidence.6
Under the Act, the term disability means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.7 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.8 An employee who has a physical impairment causally related to her federal
employment, but who nonetheless has the capacity to earn the wages she was receiving at the
time of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.9 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in her employment, she is entitled to compensation for any loss of wages.
To meet this burden, a claimant must submit rationalized medical opinion evidence based
on a complete factual and medical background supporting such a causal relationship.
Rationalized medical opinion evidence is medical evidence which includes a physician’s opinion
on the issue of whether there is a causal relationship between the claimant’s diagnosed condition
and the implicated employment factor(s).10 The opinion of the physician must be based on a
complete factual and medical background, must be one of reasonable medical certainty and must
be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.11

3

5 U.S.C. §§ 8101-8193.

4

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986); Joseph M.
Whelan, 20 ECAB 55 (1968).
5

See Amelia S. Jefferson, supra note 4; see also David H. Goss, 32 ECAB 24 (1980).

6

See Edward H. Horton, 41 ECAB 301 (1989).

7

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); Conard Hightower, 54 ECAB 796
(2003); 20 C.F.R. § 10.5(f).
8

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

9

Merle J. Marceau, 53 ECAB 197 (2001).

10

A.D., 58 ECAB 149 (2006).

11

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

3

The Board will not require the Office to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.12
ANALYSIS
The Office accepted that appellant sustained a right knee contusion in the performance of
duty on October 2, 2008. Appellant claimed compensation for disability commencing that date
due to the accepted condition. She has the burden of establishing by the weight of the
substantial, reliable and probative evidence, a causal relationship between her claimed disability
and the accepted condition.13
Dr. Margalit advised that he treated appellant for cervical radiculopathy, chronic pain,
depression, fibromyalgia and right knee contusion due to multiple falls and giving way of the
knee. His diagnosis of “probable” right knee instability is speculative in nature and unsupported
by rationalized medical evidence explaining the nature of the relationship between her current
right knee condition and the accepted employment injury.14 Although Dr. Margalit found that
appellant was disabled for work, he did not address how her disability was due to the accepted
right knee condition. Rather, he appeared to attribute disability to appellant’s cervical condition
and chronic pain. Dr. Margalit did not explain the basis for appellant’s disability commencing
October 2, 2008. His reports do not adequately address whether appellant’s disability for the
claimed period was caused by her accepted right knee condition.15 As noted, it is appellant’s
burden to establish her disability by the submission of probative medical evidence.16 The Board
finds that the medical evidence from Dr. Margalit is insufficient to establish appellant’s claim.
The Board finds that there is insufficient rationalized medical evidence to establish that
appellant was disabled commencing October 2, 2008 due to residuals of her accepted right knee
contusion. Appellant did not meet her burden of proof.
CONCLUSION
The Board finds that appellant has failed to establish that she was totally disabled
commencing October 2, 2008 due to her accepted October 2, 2008 employment injury.

12

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

13

Alfredo Rodriguez, 47 ECAB 437 (1996).

14

Leslie C. Moore, 52 ECAB 132 (2000).

15

The Board has held that medical evidence which does not offer an opinion regarding the cause of an
employee’s condition is of limited probative value. A.D., supra note 10; Michael E. Smith, 50 ECAB 313 (1999).
16

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the November 16, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 13, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.J., Appellant
and
DEPARTMENT OF AGRICULTURE,
AGRICULTURAL RESEARCH SERVICE
PACIFIC RIM REGION, Beltsville, MD,
Employer
__________________________________________

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

Docket No. 15-1734
Issued: April 12, 2016

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 August 14, 2015 appellant filed a timely appeal from a June 26, 2015 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

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the June 26, 2015 decision. Since the
Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the Board
may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 ECAB
126 (2005). Appellant may submit that evidence to OWCP along with a request for reconsideration, pursuant to 5
U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(3).

ISSUES
The issues are: (1) whether appellant received an overpayment in the amount of $611.00
for the period February 20, 2005 to December 20, 2008, for which he was not at fault;
(2) whether OWCP abused its discretion by refusing to waive recovery of the overpayment; and
(3) whether OWCP properly required repayment of the overpayment by deducting $50.00 every
28 days from appellant’s continuing compensation payments.
FACTUAL HISTORY
OWCP accepted that on August 6, 1976 appellant, then a 46-year-old biological
technician, sustained a left knee injury when his knee gave way while he was moving bee hives
at work. He stopped work on August 9, 1976 and returned to work on August 10, 1976.
Appellant’s claim was accepted for left knee lateral meniscus tear. On November 10, 1976 he
underwent authorized left knee surgery and stopped work. On January 10, 1977 appellant
returned to modified duty.
OWCP granted appellant a schedule award for 17 percent permanent impairment of his
left leg. The award ran from January 5 to December 13, 1978. Appellant received an additional
award of 17 percent impairment, which ran from November 16, 1991 to October 23, 1992.
OWCP also accepted that on August 6, 1982 and May 10, 1989 appellant sustained
recurrences of disability of the August 6, 1976 injury. He underwent authorized left knee
surgery on September 28, 1989 and stopped work.
In a letter dated October 5, 1992, appellant requested continued disability compensation.
On June 9, 1993 OWCP placed him on the periodic rolls.
On July 3, 1996 OWCP reduced appellant’s compensation, effective July 21, 1996 based
on his capacity to earn wages as a fishing lure assembler.
The record substantiates that on March 26, 2009 OWCP provided a print-out of
appellant’s payment history for the period August 6, 1976 to March 26, 2009. The print-out
reflected that premiums were deducted for life insurance.
By letter dated October 29, 2009, OWCP advised appellant that his basic life insurance
(BLI) was updated in its records. It notified him that he was due a reimbursement of $2,395.12
for the period June 26, 1994 to December 20, 2008 because BLI was at no cost for injuries prior
to 1990. A fiscal payment worksheet indicated that beginning June 26, 1994 BLI premiums of
$12.22 were withheld per 28-day periodic payment cycle. OWCP calculated the refund by
multiplying 196 (the number of 28-day periodic payment cycles from June 26, 1994 to
December 20, 2008) by $12.22 for a total of $2,395.12. On October 30, 2009 it refunded
appellant $2,395.12 via direct deposit for BLI premiums from June 26, 1994 to
December 20, 2008.
By letter dated October 9, 2014, OWCP informed appellant that BLI premiums were
erroneously deducted from his compensation payments for the period February 20, 2005 to
December 20, 2008. It explained that since his date of injury was prior to January 1, 1990 he
2

should have received BLI at no cost and no premiums should have been deducted from his
benefit payment. OWCP noted that the over deduction of premiums caused an underpayment of
compensation benefits for the period February 20, 2005 to December 20, 2008 in the amount of
$611.00. On November 5, 2014 it refunded appellant a lump sum of $611.00 via direct deposit.
In a letter dated March 18, 2015, OWCP advised appellant of its preliminary finding that
an overpayment of $611.00 of compensation was created for the period February 20, 2005 to
December 20, 2008, for which he was not at fault. In an accompanying memorandum, it
explained that he was reimbursed twice for BLI premiums for the period February 20, 2005 to
December 20, 2008. OWCP noted that appellant was previously reimbursed $2,395.12 on
October 30, 2009 for BLI premiums covering the period June 26, 1994 to December 20, 2008. It
indicated that he was again reimbursed $611.00 on November 5, 2014 for BLI premiums
covering the period February 20, 2005 to December 20, 2008. Because appellant was already
reimbursed for the period February 20, 2005 to December 20, 2008, OWCP determined that an
overpayment in the amount of $611.00 had occurred.
In its March 18, 2015 notice, OWCP advised appellant that he could submit evidence
challenging the fact, amount, or finding of fault and request waiver of the overpayment. It
requested that he complete the enclosed overpayment recovery questionnaire and submit
supporting financial documents. OWCP notified appellant that he had 30 days to request a
telephone conference, a final decision based on the written evidence, or a prerecoupment
hearing. No additional evidence from appellant was received.
On June 26, 2015 OWCP finalized that appellant received an overpayment of
compensation in the amount of $611.00 for the period February 20, 2005 to December 20, 2008.
It found that he was not at fault in the creation of the overpayment, but was not eligible for
waiver of recovery of the overpayment because he had not submitted the requested financial
information to allow OWCP to consider waiver of recovery. OWCP determined that it would
deduct $50.00 from appellant’s ongoing compensation payments until the overpayment was
satisfied.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.3 Under Federal Employees Health Benefit Plan (FEHB) and/or Federal
Employees Group Life Insurance (FEGLI) plan, most civilian employees of the Federal
Government are eligible to participate in BLI and one or more of the options.4 If an employee
was enrolled in a FEGLI plan at the time he became eligible to receive wage-loss compensation,
deductions for health benefits insurance and/or life insurance premiums will be withheld from
the employee’s compensation benefits.5 Premiums for BLI and/or optional life insurance are

3

5 U.S.C. § 8102(a).

4

Id. at § 8702(a).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Compensation Claims, Chapter 2.901.15 (February 2013).

3

withheld until the injured employee reaches age 65.6 There is no charge for BLI coverage in
cases with a date of injury prior to January 1, 1990.7
ANALYSIS -- ISSUE 1
The record reveals that OWCP erroneously withheld BLI premiums for the period
June 26, 1994 through December 20, 2008. On October 30, 2009 OWCP refunded $2,395.12 to
appellant via direct deposit for the erroneous deductions. Several years later it made another BLI
adjustment of $611.00 for the period February 20, 2005 through December 20, 2008 and
refunded appellant a lump sum of $611.00 via direct deposit. OWCP determined that this second
payment duplicated part of the October 2009 BLI refund and, therefore, created an overpayment
of $611.00 for the period February 20, 2005 through December 20, 2008. The Board finds that
the receipt of these two reimbursements for the same time period caused an overpayment of
compensation in the amount of $611.00.8 The Board will affirm OWCP’s June 26, 2015
decision on the issue of fact and amount of the overpayment.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience.9
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter that rests
within OWCP’s discretion pursuant to statutory guidelines.10 When a claimant is found to be
without fault in the matter of the overpayment, then, in accordance with section 8129(b), OWCP
may only recover the overpayment if it determined that recovery of the overpayment would
neither defeat the purpose of FECA nor be against equity and good conscience.
Section 10.438 of OWCP regulations provide:
The individual who received the overpayment is responsible for providing
information about income, expenses, and assets as specified by OWCP. This
information is needed to determine whether or not recovery of an overpayment
would defeat the purpose of FECA or be against equity and good conscience. The
information will also be used to determine the repayment schedule, if necessary.

6

Id. at Chapter 2.901.15c(1) and (2).

7

Id. at Chapter 2.901.15c(1).

8

See J.W., Docket No. 15-1282 (issued October 1, 2015).

9

5 U.S.C. § 8129(b).

10

See Robert Atchison, 41 ECAB 83, 87 (1989).

4

Failure to submit the requested information within 30 days of the request shall
result in denial of waiver, and no further request for waiver shall be considered
until the requested information is furnished.11
ANALYSIS -- ISSUE 2
OWCP found that as appellant was not at fault in the creation of the overpayment, he was
eligible for consideration of waiver. In its March 18, 2015 notice of overpayment, it requested
that he provide financial information and submit an overpayment recovery questionnaire within
30 days of the preliminary overpayment notification. The Board notes that the notice of
overpayment was sent to his proper address of record. Appellant, however, did not provide the
requested financial information nor did he complete an overpayment recovery questionnaire or
provide supporting financial documents within the appropriate time period to allow OWCP to
consider waiver of recovery of the overpayment. Because he did not submit the necessary
financial information, OWCP had no basis to find that recovery of the overpayment would defeat
the purpose of FECA or be against equity and good conscience, as required by regulation.12
Therefore, the Board finds that OWCP properly denied waiver of recovery of the $611.00
overpayment of compensation13
On appeal, appellant asserts that the $611.00 overpayment should be waived because he
was not at fault in the creation of the overpayment and recovery would be against equity and
good conscience. As noted above, however, OWCP properly denied waiver of recovery of the
compensation because he failed to submit the requested financial information supporting such
waiver.
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of Title 20 of the Code of Federal Regulations provides in pertinent part:
When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
the error is discovered or his attention is called to the same. If no refund is made,
OWCP shall decrease later payments of compensation, taking into account the
probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize
any hardship.14

11

20 C.F.R. § 10.438.

12

Supra note 11.

13

See M.S., Docket No. 15-1874 (issued January 6, 2016); R.N., Docket No. 09-1882 (issued April 16, 2010).

14

20 C.F.R. § 10.441(a); see Donald R. Schueler, 39 ECAB 1056, 1062 (1988).

5

ANALYSIS -- ISSUE 3
OWCP determined that the overpayment should be recovered from appellant’s continuing
compensation payments by deducting $50.00 every 28 days. The Board finds that OWCP did
not abuse its discretion and took into consideration the factors set forth in section 10.441.
OWCP followed collection guidelines by requiring installments large enough to collect the debt
promptly and minimizing any resulting hardship on appellant.15 The Board will affirm OWCP’s
determination regarding rate of recovery.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $611.00 for the period February 20, 2005 through December 20, 2008. The Board further
finds that OWCP properly denied waiver of recovery of the overpayment and reasonably
withheld $50.00 from appellant’s continuing compensation.
ORDER
IT IS HEREBY ORDERED THAT the June 26, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 12, 2016
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

15

Appellant was receiving compensation payments of approximately $1,616.94 every 28 days at the time the
June 26, 2015 decision was issued. The debt would be paid in full on June 13, 2016.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.A., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Beckley, WV, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 17-1010
Issued: September 6, 2017

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

On April 10, 2017 appellant filed an application for review of a February 2, 2017
decision of the Office of Workers’ Compensation Programs (OWCP), OWCP File No.
xxxxxx805, in which an OWCP hearing representative affirmed an April 14, 2016 decision
which denied appellant’s traumatic injury claim.2 The appeal was docketed as OWCP File No.
17-1010.
In the February 2, 2017 decision, an OWCP hearing representative noted that appellant
had another claim for right shoulder, lumbar, thoracic, and cervical strains occurring on
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

On February 23, 2016 appellant had filed a traumatic injury claim (Form CA-1) alleging that she injured her
head, neck, back, and right side on February 1, 2016 when she lost her balance and fell while in the performance of
duty as a telephone triage nurse.

February 12, 2002 while pulling a patient up in bed, OWCP File No. xxxxxx650. He advised
that on May 4, 2005, appellant sustained low back pain as a result of helping a patient in a
wheelchair, OWCP File No. xxxxxx767. The hearing representative indicated that on
November 2, 2008 appellant sustained neck and lumbar strains while assisting a patient back into
bed, OWCP File No. xxxxxx505. He noted that a “careful and thorough review of the medical
evidence in the case at issue (and OWCP File Nos. xxxxxx650, xxxxxx767, and xxxxxx505)
fails to reflect medical evidence in which a physician has displayed an accurate history of injury,
definitive diagnosis, and indicated unequivocally that the diagnosed condition is causally related
to the accepted employment trauma....”3 The Board is unable to view OWCP File Nos.
xxxxxx650, xxxxxx767, and xxxxxx505 on the Integrated Federal Employees’ Compensation
System.
The Board has duly considered the matter and notes that the case is not in posture for a
decision. The claim before the Board, OWCP File No. xxxxxx805, pertains to a claim where
OWCP denied appellant’s traumatic injury claim for head, neck, back and right side conditions,
which occurred on February 1, 2016, because the weight of the medical evidence failed to
establish that these conditions were causally related to the February 1, 2016 work incident. In
the February 2, 2017 decision, OWCP’s hearing representative noted reviewing evidence from
OWCP File Nos. xxxxxx650, xxxxxx767, and xxxxxx505 in reaching his decision. However, as
noted, OWCP File Nos. xxxxxx650, xxxxxx767, and xxxxxx505 are not presently accessible by
the Board. Pursuant to its procedures, OWCP has determined that cases should be combined
where correct adjudication depends on cross-referencing between files.4 For a full and fair
adjudication, the Board must be able to review the contents of OWCP File Nos. xxxxxx650,
xxxxxx767, and xxxxxx505.
The case will be remanded to OWCP to combine these claim files.5 Following this and
such other development as deemed necessary, OWCP shall issue an appropriate merit decision
on the matter to preserve appellant’s appeal rights.

3

The hearing representative also indicated that there was evidence that appellant had a low back injury on
April 14, 2001 that had been developed by OWCP under File No. xxxxxx345. However, he did not indicate that he
had reviewed or considered evidence from that claim file. OWCP File No. xxxxxx345 is not before the Board on
the present appeal.
4

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
5

OWCP shall also consider whether, pursuant to its procedures, OWCP File No. xxxxxx345 should be combined
with the present claim.

2

IT IS HEREBY ORDERED THAT the February 2, 2017 decision be set aside and the
matter remanded to OWCP for further proceedings consistent with this order.
Issued: September 6, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
U.S. POSTAL SERVICE, VERNON HILLS
POST OFFICE, Vernon Hills, IL, Employer
__________________________________________

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

Docket No. 21-1209
Issued: March 24, 2022

Case Submitted on the Record

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

JURISDICTION
On August 5, 2021 appellant, through counsel, filed a timely appeal from a June 16, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish greater than five
percent permanent impairment of the left lower extremity, for which he has received schedule
award compensation.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On January 17, 2017 appellant, then a 55-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that date he sprained his left thigh and upper leg when he lost
his footing and slipped on mud and ice while in the performance of duty. He stopped work on
January 18, 2017. OWCP accepted the claim for a strain of the left thigh muscle. On June 30,
2017 appellant underwent an OWCP-authorized left L3-4 foraminotomy and microdiscectomy.
OWCP subsequently expanded acceptance of the claim to include L3-4 disc protrusion and lumbar
radiculopathy secondary to left L3-4 disc protrusion. It paid appellant wage-loss compensation on
the supplemental rolls from March 4 until May 26, 2017.
In an impairment evaluation report dated April 25, 2019, Dr. Neil Allen, a Board-certified
internist and neurologist, obtained a history of appellant’s January 17, 2017 employment injury
and discussed his continued complaints of back pain radiating into the left thigh. On examination
he found some thigh and calf atrophy, intact sensation, and full strength of the lumbar spine and
left hip. To ascertain the range of motion (ROM), Dr. Allen performed three measurements of the
left hip, with the highest measurement yielding 70 degrees flexion, plus 6 degrees extension, 45
degrees external rotation, 55 degrees internal rotation, 61 degrees abduction, and 24 degrees
adduction. Dr. Allen found 10 percent permanent impairment of the left lower extremity due to
loss of ROM. Referencing The Guides Newsletter, Rating Spinal Nerve Extremity Impairment
Using the Sixth Edition (July/August 2009) (The Guides Newsletter), which is a supplemental
publication of the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides),4 Dr. Allen found no sensory or motor impairment of
either lower extremity due to a spinal condition. He determined that using the diagnosis-based
impairment (DBI) method for the diagnosis of hip strain yielded a lower extremity impairment
rating between five and seven percent. Dr. Allen reported that the ROM method resulted in a
greater impairment rating.
On May 22, 2019 appellant filed a claim for compensation (Form CA-7) for a schedule
award.

3

Docket No. 20-1146 (issued December 18, 2020).

4

(6 th ed. 2009).

2

On October 8, 2019 5 Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving
as a DMA, concurred with Dr. Allen’s finding that appellant had no impairment of either lower
extremity due to a spinal nerve impairment under The Guides Newsletter. He found that ROM
was not permitted as an alternative impairment rating for the applicable class of diagnosis (CDX)
of left hip strain. Dr. Katz found that a CDX of hip strain with mild motion deficits was a Class 1
impairment, which yielded a default value of two percent of the left lower extremity according to
Table 16-4 on page 512 of the A.M.A., Guides. He applied a grade modifier for functional history
(GMFH) and a grade modifier for physical examination (GMPE) of one each and indicated that a
grade modifier for clinical studies (GMCS) was inapplicable. Dr. Katz utilized the net adjustment
formula and found no change from the default value of two percent. He concluded that appellant
had two percent permanent impairment of the left lower extremity.
By decision dated October 22, 2019, OWCP granted appellant a schedule award for two
percent left lower extremity permanent impairment. The period of the award ran for 5.76 weeks
from April 25 to June 4, 2019.
On November 19, 2019 counsel requested a review of the written record before a
representative of OWCP’s Branch of Hearings and Review and submitted an addendum report
from Dr. Allen dated November 14, 2019, in which he opined that the ROM method yielded 10
percent permanent impairment due to loss of hip flexion, and thus was preferable to the DBI
method as it resulted in a higher impairment rating.
By decision dated March 23, 2020, an OWCP hearing representative affirmed the
October 22, 2019 schedule award decision.
On May 13, 2020 counsel filed an appeal with the Board. By decision dated December 18,
2020, the Board set aside the March 23, 2020 decision and remanded the case to OWCP for
clarification from the DMA as to whether the accepted conditions included a left hip strain and
whether appellant had a mild or moderate motion deficit of the left hip. 6
On January 6, 2021 OWCP requested clarification from the DMA, Dr. Katz, as to whether
the accepted conditions included a left hip strain. It also requested h e clarify his left lower
extremity impairment rating using Table 16-4 and to explain his finding that appellant had only
mild motion deficit given that Dr. Allen found he had moderately reduced hip ROM.
In an addendum dated January 7, 2021, Dr. Katz noted that appellant’s accepted left thigh
strain encompassed the left hip. He again found that ROM was not permitted as an alternative
impairment rating for the applicable CDX of left hip strain. Dr. Katz found that a CDX for hip
strain with moderate motion deficits, which is a Class 1 impairment, yielded a default value of five
percent of the left lower extremity according to Table 16-4 on page 512 of the A.M.A., Guides.
He applied a GMFH and a GMPE of one each and indicated that GMCS was inapplicable. Dr. Katz

The report notes the year as “2018” which appears to be a typographical error as OWCP referred the claim to the
DMA on September 26, 2019.
5

6

Supra note 3.

3

utilized the net adjustment formula and found no change from the default value of five percent.
He concluded that appellant had five percent permanent impairment of the left lower extremity.
By decision dated January 27, 2021, OWCP granted appellant an additional three percent
schedule award for left lower extremity permanent impairment, for a total five percent left lower
extremity permanent impairment. The period of the award ran for 8.64 weeks from June 5 to
August 4, 2019.
On February 25, 2021 counsel requested a review of the written record before a
representative of OWCP’s Branch of Hearings and Review.
By decision dated June 16, 2021, OWCP’s hearing representative affirmed the January 27,
2021 schedule award decision.
LEGAL PRECEDENT
The schedule award provisions of FECA 7 and its implementing regulations 8 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. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound discretion of OWCP. For
consistent results and to ensure equal justice, good administrative practice necessitates the use of
a single set of tables so that there may be uniform standards applicable to all claimants. OWCP
evaluates the degree of permanent impairment according to the standards set forth in the specified
edition of the A.M.A., Guides, published in 2009. 9 The Board has approved the use by OWCP of
the A.M.A., Guides for the purpose of determining the percentage loss of use of a member of the
body for schedule award purposes. 10
In determining permanent impairment of the lower extremities under the sixth edition of
the A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the
lower extremity to be rated. With respect to the hip, the relevant portion of the leg for the present
case, reference is made to Table 16-4 (Hip Regional Grid) beginning on page 512. 11 After the
CDX is determined from the Hip Regional Grid (including identification of a default grade value),
the net adjustment formula is applied using GMFH, GMPE, and GMCS. The net adjustment

7

Supra note 2.

8

20 C.F.R. § 10.404.

9

For decisions issued after May 1, 2009, the sixth edition of the A.M.A., Guides is used. A.M.A., Guides (6 th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
10

L.E., Docket No.20-1505 (issued June 7, 2021); P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro
Rivera, 12 ECAB 348 (1961).
11

A.M.A., Guides 512-15 (6 th ed. 2009).

4

formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).12 Under Chapter 2.3, the
evaluators are directed to provide reasons for their impairment rating choices, including the
choices of diagnoses from regional grids and calculations of modifier scores. 13
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of
impairment specified. 14
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish more than five
percent permanent impairment of his left lower extremity, for which he previously received
schedule award compensation.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s March 23, 2020 merit decision because the
Board considered that evidence in its December 18, 2020 decision. Findings made in prior Board
decisions are res judicata absent any further review by OWCP under section 8128 of FECA. 15
On prior appeal, the Board remanded the case to OWCP to request clarification from the
DMA as to whether the accepted conditions include a left hip strain, and whether appellant had a
mild or moderate motion deficit of the left hip. In a report dated January 18, 2021, Dr. Katz again
found that ROM was not permitted as an alternative impairment rating for the diagnosis of left hip
strain. Dr. Katz found that a CDX of hip strain with moderate motion deficits, which is a Class 1
impairment, yielded a default value of five percent of the left lower extremity according to Table
16-4 on page 512 of the A.M.A., Guides. He applied a GMFH and a GMPE of one each and
indicated that GMCS was inapplicable. Dr. Katz utilized the net adjustment formula and found no
change from the default value of five percent. He concluded that appellant had five percent
permanent impairment of the left lower extremity.
The Board finds that Dr. Katz adequately explained how he arrived at his rating of
permanent impairment by listing specific tables and pages in the A.M.A., Guides. The Board also
finds that Dr. Katz properly interpreted and applied the standards of the sixth edition of the
A.M.A., Guides to conclude that appellant qualified for five percent permanent impairment of the
left lower extremity. Dr. Katz’s opinion therefore represents the weight of the medical evidence
and supports that appellant has five percent permanent impairment of the left lower extremity.

12

Id. at 515-22.

13

Id. at 23-28.

14

See supra note 9 at Chapter 2.808.6(f) (March 2017).

15

T.R., Docket No. 20-0588 (issued June 25, 2021); A.G., Docket No. 18-0329 (issued July 26, 2018); Clinton E.
Anthony, Jr., 49 ECAB 476 (1998).

5

Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish more than five
percent permanent impairment of his left lower extremity, for which he previously received
schedule award compensation.
ORDER
IT IS HEREBY ORDERED THAT the June 16, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 24, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6