United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.A., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, Portsmouth, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Neil C. Bonney, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1184
Issued: October 21, 2015

Case Submitted on the Record

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

JURISDICTION
On April 30, 2015 appellant, through counsel, filed a timely appeal from a November 3,
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 the case.
ISSUE
The issues is whether appellant met her burden of proof to establish that she sustained a
recurrence of disability on June 6, 2012 causally related to an August 17, 2009 employment
injury.
FACTUAL HISTORY
On August 17, 2009 appellant, then a 29-year-old air condition equipment mechanic, was
injured when she fell from a board on a mid-level deck. She claimed hip and back pain. OWCP
1

5 U.S.C. § 8101 et seq.

accepted appellant’s claim for a lumbar sprain, thoracic or lumbosacral neuritis or radiculitis, and
joint pain in the pelvic and thigh region. Appellant stopped work on August 17, 2009 and
returned to light-duty work four hours per day on September 18, 2009. She returned to full-time
work with restrictions on August 9, 2010 until she stopped work completely on June 6, 2012.
Appellant underwent a magnetic resonance imaging (MRI) scan of the lower extremities
on May 10, 2010 which revealed trochanteric bursitis/gluteus tendinitis. She was treated by
Dr. Reeta M. Arora, a Board-certified orthopedist, from March 29, 2010 to February 22, 2012 for
right hip pain. On August 9, 2010 Dr. Arora noted that appellant was status post work-related
injury in August 2009 with ongoing bilateral hip and thigh pain. He returned her to work full
time with restrictions.
Appellant was also treated by Dr. Richard D. Knauft, a Board-certified orthopedist, from
August 18 to November 17, 2010 for left hip pain. Dr. Knauft noted that she experienced pain in
her hip since an accident that occurred on August 8, 2010. He diagnosed trochanteric bursitis in
the left hip.
Appellant filed several Form CA-7, claims for compensation for leave without pay, for
the period beginning June 6, 2012.
In a letter dated June 19, 2012, OWCP noted that following the work injury appellant
returned to work on September 18, 2009 in a limited-duty capacity and continued to work until
June 6, 2012 when she stopped completely. It noted that her claim would be developed as a
recurrence of disability. OWCP advised appellant of the type evidence needed to establish her
claim. It particularly asked that she submit a physician’s reasoned opinion addressing the
relationship of her claimed condition and specific employment factors.
In response to OWCP questions, appellant indicated that she always had back pain and
pain from bursitis, but that she had used medication to cope with the pain. However, she was
unable to continue taking the medication because she was pregnant. Appellant indicated that she
was in severe pain.
Appellant submitted a June 6, 2012 report from Dr. Knauft who treated her for chronic
pain and discomfort in her hips with trochanteric bursitis type symptoms that have not resolved.
Dr. Knauft noted that she fell at work and filed a workers’ compensation claim. He noted that
appellant was eight weeks pregnant and reported being unable to perform her job because of hip
and back pain and believed that her pregnancy aggravated her condition. Dr. Knauft noted
findings of subjective low back discomfort, discomfort on palpation of the trochanteric bursa in
each hip, intact hip range of motion, intact knee and ankle motion, negative straight leg raises,
and intact motor function. He diagnosed unresolved chronic pain at the trochariteric area in both
hips. Dr. Knauft noted that appellant would remain off work. In a report dated July 11, 2012, he
noted her complaints of continued pain in the left hip and proximal left thigh. Dr. Knauft noted
that appellant fell at work and had pain over the last two years. He noted that the examination
was unchanged and she remained off work due to this problem. Appellant submitted attending
physician’s reports from Dr. Knauft dated June 6 and July 11, 2012, who noted findings of
lumbar spine and bilateral hip pain. He diagnosed lumbar strain, sciatica, and nerve root
irritation and noted with a checkmark “yes” that appellant’s condition was caused or aggravated

2

by an employment activity. Dr. Knauft opined that she was out of work from June 6 to
August 16, 2012. In a duty status report dated June 6 and July 11, 2012, he noted that appellant
was totally disabled. Appellant also submitted physical therapy notes.
In a July 23, 2012 decision, OWCP found that the evidence submitted did not establish
that appellant sustained a recurrence of disability on June 6, 2012 causally related to her
August 17, 2009 work injury.
Appellant submitted a report from Dr. Aaron Marlow, an orthopedic surgeon, dated
August 16, 2012, who treated her for left leg numbness. Dr. Marlow noted that she filed a claim
for a workers’ compensation injury in 2009 when she fell and injured her left leg. He noted that
appellant also had chronic, recurrent bursitis. Dr. Marlow noted that her symptoms had
worsened since 2009 and she has been unable to work for a number of months. He noted
findings on examination of no antalgic gait, the hips rotate adequately, but have trochanteric
irritation with palpation, mild sensory changes, negative straight leg raises, low back tenderness
to palpation at approximately L3-4, and the SI joints were mildly tender. Dr. Marlow opined that
appellant’s condition represented an unresolved case where she still had problems from her work
injury. He noted that he could not fully assess her because he did not have any current x-rays.
Dr. Marlow recommended x-rays and an MRI scan.
On July 1, 2013 appellant requested reconsideration. In a statement dated July 23, 2013,
she reiterated that her back pain and bursitis have always existed. Appellant reiterated that she
was given medication to cope with the pain, but was unable to take the medication because she
was pregnant. She indicated that she was in severe pain.
In a decision dated September 30, 2013, OWCP denied modification of the decision
dated July 23, 2012.
On July 23, 2014 appellant requested reconsideration. She submitted a report from
Dr. David H. Cyr, an osteopath, dated July 18, 2014, who noted that she was a long-standing
patient. Dr. Cyr advised that, in May 2012, appellant informed him that she was pregnant and he
instructed her to stop taking all medications for the duration of her pregnancy to prevent harm to
the baby.
In a decision dated November 3, 2014, OWCP denied modification of the decision dated
September 13, 2013.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition resulting from a previous injury or
illness without an intervening cause or a new exposure to the work environment that caused the
illness. It can also mean an inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her work-related

3

injury or illness is withdrawn or when the physical requirements of such an assignment are
altered so that they exceed his or her established physical limitations.2
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the
burden of proof to establish, by the weight of the reliable, probative, and substantial evidence, a
recurrence of total disability and an inability to perform such limited-duty work. As part of this
burden, the employee must show a change in the nature and extent of the injury-related condition
or a change in the nature and extent of the limited-duty job requirements.3 To establish a change
in the nature and extent of the injury-related condition, there must be a probative medical
opinion, based on a complete and accurate factual and medical history as well as supported by
sound medical reasoning, that the disabling condition is causally related to employment factors.4
In the absence of rationale, the medical evidence is of diminished probative value.5 While the
opinion of a physician supporting causal relationship need not be one of absolute medical
certainty, it must not be speculative or equivocal. The opinion should be expressed in terms of a
reasonable degree of medical certainty.6
ANALYSIS
OWCP accepted that appellant sustained lumbar sprain, thoracic or lumbosacral neuritis
or radiculitis, and joint pain in the pelvic and thigh region after a fall. Appellant returned to a
light-duty job and continued to work until June 6, 2012 when she stopped work completely. On
June 7, 2012 she filed a Form CA-7, which OWCP developed as a recurrence of disability. The
Board finds that the record lacks a well-reasoned narrative from appellant’s physicians relating
appellant’s claimed recurrent disability to her accepted employment injury. Furthermore,
appellant has not presented evidence that the employing establishment either withdrew her lightduty job or altered the assignment so as to require her to exceed her physical restrictions before
she stopped work.
Appellant submitted a June 6, 2012 report from Dr. Knauft who treated her for
trochanteric bursitis and chronic hip and back pain. Dr. Knauft noted that she had a workers’
compensation injury after falling at work. He reported that appellant was eight weeks pregnant
and unable to perform her job because of hip and back pain and that he believed that her
pregnancy aggravated her condition. Dr. Knauft diagnosed unresolved chronic pain at the
trochariteric area in both hips and noted that she would remain off work. On July 11, 2012 he
2

J.F., 58 ECAB 124 (2006). A recurrence of disability does not apply when a light-duty assignment is
withdrawn for reasons of misconduct, nonperformance of job duties, or other downsizing. 20 C.F.R. § 10.5(x). See
also Richard A. Neidert, 57 ECAB 474 (2006).
3

A.M., Docket No. 09-1895 (issued April 23, 2010); Terry R. Hedman, 38 ECAB 222 (1986).

4

Mary A. Ceglia, 55 ECAB 626, 629 (2004).

5

Id.; Robert H. St. Onge, 43 ECAB 1169 (1992).

6

Ricky S. Storms, 52 ECAB 349 (2001).

4

noted appellant’s pain complaints since a fall at work and reported that she was disabled due to
this problem. However, Dr. Knauft did not specifically address whether she had a recurrence of
disability on June 6, 2012 causally related to the accepted employment conditions or otherwise
provide medical reasoning explaining why any current condition or disability was due to the
accepted August 17, 2009 work injury. He also did not explain how bursitis was causally related
to the accepted conditions. In June 6 and July 11, 2012 attending physician’s reports, Dr. Knauft
diagnosed lumbar strain, sciatica, and nerve root irritation and checked a box “yes” that
appellant’s condition was employment related. He opined that appellant was out of work from
June 6 to August 16, 2012. The Board has held that when a physician’s opinion on causal
relationship consists only of checking “yes” to a form question, without explanation or rationale,
that opinion is of diminished probative value and is insufficient to establish a claim.7 Duty status
reports dated June 6 and July 11, 2012, advised that appellant was totally disabled from work,
but Dr. Knauft did not address how this was due to a spontaneous change in the accepted
conditions. Consequently, the reports from Dr. Knauft are insufficient to establish a recurrence
of disability.
In an August 16, 2012 report, Dr. Marlow who treated appellant for left leg numbness,
noted that she was treated for a work injury in 2009 when she fell and injured her left leg. He
noted her symptoms have worsened since 2009 and she has been unable to work for a number of
months. Dr. Marlow opined that appellant’s work-related injury was unresolved. However, his
report is conclusory and insufficient to establish her claim as he did not provide a rationalized
opinion explaining the reasons why her recurrent condition and disability was due to the
accepted work injury.8 Additionally, Dr. Marlow failed to note a specific date of a recurrence of
disability and he did not note a particular change in the nature of appellant’s physical condition,
arising from the employment injury, which prevented her from performing her light-duty
position.
Appellant submitted a report from Dr. Cyr dated July 18, 2014, who noted in May 2012
that she informed him she was pregnant and he instructed her to stop taking all medications for
the duration of her pregnancy to prevent harm to the baby. The Board notes that this report is
insufficient to establish her claim for a recurrence of disability on June 6, 2012 as Dr. Cyr failed
to note a specific date of a recurrence of disability and he did not note a particular change in the
nature of her physical condition, arising from the employment injury, which prevented her from
performing her light-duty position.
Appellant submitted physical therapy notes. The Board has held that treatment notes
signed by a physical therapist are not considered medical evidence as a physical therapist is not
considered a physician under FECA.9
7

D.D., 57 ECAB 734 (2006); Sedi L. Graham, 57 ECAB 494 (2006).

8

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); see Jimmie H. Duckett, 52 ECAB 332 (2001).
9

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician assistants, nurses and physical
therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a
“physician” as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic
practitioners within the scope of their practice as defined by State law).

5

Appellant did not otherwise submit medical evidence showing that she sustained a
recurrence of disability causally beginning June 6, 2012 causally related to her August 17, 2009
work injury.
On appeal appellant asserts that her work-related condition was chronic and continued up
until her work stoppage on June 6, 2012 when she could no longer take pain medications because
of her pregnancy. However, as noted above, the medical evidence submitted did not provide a
rationalized medical opinion explaining why her claimed recurrent condition or disability on
June 6, 2012 was due to the August 17, 2009 work injury.10
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained a recurrence of disability causally related to her accepted condition.

10

See K.S., Docket No. 12-1258 (issued December 17, 2012) (appellant filed a claim alleging a recurrence of
disability after she discontinued her medications due to her pregnancy; the Board found the medical evidence
insufficient to establish a causal relationship).

6

ORDER
IT IS HEREBY ORDERED THAT the November 3, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 21, 2015
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.K., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Denver, CO, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Timothy Quinn, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-445
Issued: December 6, 2010

Case Submitted on the Record

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

JURISDICTION
On November 23, 2009 appellant, through his attorney, filed a timely appeal of an
August 27, 2009 Office of Workers’ Compensation Programs’ merit decision denying his
consequential injury claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant sustained a consequential right-knee injury as a result of
his accepted left knee condition.
FACTUAL HISTORY
This case has previously been before the Board. On July 19, 1991 appellant sustained
injury to his left knee. The Office accepted his claim for torn meniscus in the left knee on
September 9, 1991. On November 11, 1991 Dr. Willard Schuler, a Board-certified orthopedic
surgeon, performed an arthroscopic examination that did not reveal any tear of the medial
meniscus. The Office also accepted the condition of left knee strain. It listed appellant’s

concurrent conditions as right knee medial meniscal tear and right arthroscopy in 1982 with right
knee surgeries in 1981, 1986, 1988, 1989, January 23 and February 5, 1993. The Office granted
appellant a schedule award for five percent impairment of his left lower extremity in 1995. It
terminated appellant’s compensation benefits by decision dated September 25, 1995 on the
grounds that he refused suitable work. In an August 12, 1999 decision, the Board set aside the
Office’s May 28, 1997 decision denying appellant’s hearing request as untimely.1 The facts of
the case as set out in the Board’s prior decision are incorporated herein by reference.
On March 21, 2001 appellant filed a notice of recurrence of disability alleging that both
knee conditions had worsened and that he was considering disability retirement. In a
memorandum dated April 12, 2002, the Branch of Hearings and Review directed the Office to
issue a final decision regarding appellant’s claimed disability due to his consequential right knee
condition. The Office accepted that appellant had sustained a recurrence of disability on
January 25, 2001. It did not specify the conditions which lead to the acceptance of the
recurrence. The Office granted appellant a schedule award for an additional 21 percent
impairment of his left lower extremity on July 9, 2002.
Beginning on May 26, 1993, appellant’s attending physician, Dr. Wayne K. Gersoff, a
Board-certified orthopedic surgeon, diagnosed bilateral knee problems. He stated that appellant
was placing a great deal of stress on his right knee in an attempt to rehabilitate and strengthen his
left knee. In a letter dated September 3, 1993, the Office requested additional information from
Dr. Gersoff regarding appellant’s right-knee condition. On December 15, 1993 Dr. Gersoff
stated that appellant had sustained an aggravation of his right knee due to the rehabilitation of his
left knee as he was putting more stress on his right knee. At that time, appellant’s right knee
symptoms had decreased from the initial exacerbation of three or four months. Dr. Gersoff
stated that due to his service-related right knee injuries and surgeries he experienced chronic
right knee pain.
Dr. David C. Bachman, a Board-certified orthopedic surgeon and second opinion
physician, completed a report on June 15, 1994 noting that appellant initially sustained a right
knee injury while in the Navy in December 1979. Appellant underwent right knee surgeries in
1981 for medial meniscectomy, in 1982 he underwent an arthroscopy, in 1983 he had an anterior
cruciate ligament reconstruction as well as additional arthroscopies with debridement in 1986,
1988 and 1989.
A physician at the Department of Veterans Affairs, (VA) whose signature is illegible,
submitted a report on October 19, 1995 and diagnosed severe degenerative arthritis in his right
knee with osteophyte formation and the presence of two loose bodies. He noted that appellant
had several reconstructive surgeries involving the anterior cruciate ligament and that his
condition was severe enough to require a total knee replacement. Dr. Tedford, Luck, a VA
physician, stated that appellant’s latest x-rays confirmed severe degenerative arthritis in the knee
with laxity of the left ankle tripartite ligament. He completed a form report on March 15, 2001
and diagnosed right three compartment severe degenerative disc disease requiring a total knee
replacement. Dr. Luck stated that appellant’s work at the employing establishment aggravated
1

Docket No.97-2141 (issued August 12, 1999).

2

his arthritis and indicated with a checkmark “yes” that appellant’s bilateral degenerative arthritis
was caused or aggravated by his employment. On December 18, 2002 Dr. Connor McBryde, a
VA physician, diagnosed bilateral degenerative arthritis and indicated with a checkmark “no”
that this condition was not caused or aggravated by an employment activity. On June 16, 2003
the Office received an undated report from Dr. A. Poirhazka, a VA physician, who opined that
appellant’s right knee treatment and left knee injury in 1991. Dr. Poirhazka noted that appellant
required treatment for bilateral knee pain, right greater than the left.
Appellant underwent a right knee total arthroplasty on May 5, 2004. In a decision dated
December 17, 2004, the Branch of Hearings and Review remanded the case for the Office to pay
compensation benefits beginning January 25, 2001 and to adjudicate the claim for a
consequential emotional and a consequential aggravation of the preexisting right knee condition.
Dr. McBryde completed a form report on December 23, 2004 and diagnosed advanced
tricompartment osteoarthritis requiring knee replacement. He indicated with a checkmark “yes”
that appellant’s condition was aggravated, but not caused by employment activities.
Dr. McBryde also provided additional opinion regarding his ability to work.
Dr. Hendrick J. Arnold, a Board-certified orthopedic surgeon, provided a second opinion
evaluation to the Office on March 4, 2005. He noted appellant’s service-related right knee injury
and resulting surgeries as well as his accepted left knee injury. Dr. Arnold reported his
symptoms of walking with a cane, increasing left knee pain with ambulation and constant
clicking, throbbing and aching in the right knee. He performed a physical examination and
opined that appellant’s left knee injury did not cause any increased damage to the right knee as
no high-demand stress was being placed on the left knee either at work or in recreational
activities. Dr. Arnold stated that the accepted left knee condition did not aggravate appellant’s
right knee and did not cause any further deterioration of the right knee as the preexisting injuries
in the right knee of meniscal tear and anterior cruciate ligament injury were consistent with the
resulting treatment of a total knee replacement.
The Office referred appellant for a second opinion psychiatric evaluation on May 30,
2005 with Dr. Bert S. Furmansky, a Board-certified psychiatrist, who reported appellant’s history
and examined him. Dr. Furmansky diagnosed chronic pain disorder with psychological factors,
bipolar disorder, panic disorder and generalized anxiety disorder. He opined that these
conditions were not due to appellant’s employment injury.
The Office referred appellant for an additional second opinion evaluation with
Dr. Randolph Pock, a Board-certified psychiatrist. In a report dated March 15, 2007, Dr. Pock
reviewed appellant’s medical history and diagnosed chronic pain disorder as well as bipolar
disorder. He opined that appellant’s chronic pain disorder predated his 1991 injury and that he
was not capable of working.
Dr. A.C. Lotman,
evaluation on March 14,
examination of the left
ballottement. Dr. Lotman

a Board-certified orthopedic surgeon, performed a second opinion
2007 and noted appellant’s history of injury. He found that
knee revealed mild patellofemoral grinding, apprehension and
opined that appellant had continuing residuals of his left knee injury

3

including mild patellofemoral and medial joint line tenderness with crepitation about the
patellofemoral joint.
By decision dated April 26, 2007, the Office denied appellant’s claim for consequential
emotional conditions and aggravation of a right knee condition. Appellant requested an oral
hearing on May 2, 2007. By decision dated August 8, 2007, the Branch of Hearings and Review
found the case not in posture for a decision as the Office had provided with a description of the
type of evidence required to establish his consequential injury claim.
In a letter dated August 9, 2007, the Office requested additional factual and medical
information from appellant regarding each of his alleged consequential injuries. It allowed 30
days for a response. The Office requested supplemental reports from Drs. Pock and Lotman,
providing them with the definition of a consequential injury. Dr. Lotman responded on
October 1, 2007 and requested additional information regarding appellant’s right knee surgeries.
He stated that based on the information currently available, he did not believe that appellant’s
right knee was aggravated as a consequential injury from his left knee.
Dr. Pock responded on October 22, 2007 and stated that appellant received treatment of
his right knee operation and pain prior to the left knee injury. He diagnosed a preexisting
chronic pain disorder, bipolar disorder and personality disorder. Dr. Pock stated, “I do not see
sufficient evidence that his emotional condition is a consequence of the accepted left knee
injury.”
Appellant provided his records from the VA. Dr. Lotman reviewed this evidence and
submitted a report dated November 28, 2007 stating that appellant’s left knee injury did not
contribute to his current right-knee condition by direct cause, aggravation, acceleration or
precipitation.
By decision dated December 10, 2007, the Office denied appellant’s claim for
consequential injury.
Appellant requested an oral hearing on December 13, 2007. He submitted a report dated
March 26, 2008 from a VA physician, noting appellant’s history of injury and right knee
arthroplasty in May 2004, as well as his left knee injury in 1991. A VA physician stated, “Since
he injured his left knee, [appellant] developed more pain in his right knee secondary to his
antalgic gait and overcompensation while walking. This ultimately became a partial factor in
[appellant] requiring the total knee replacement on the right.”
Appellant testified at the oral hearing on March 28, 2008 and alleged that his
employment duty of standing on concrete aggravated his preexisting right knee condition
beginning in 1986 when he joined the employing establishment. He submitted a report dated
July 1, 2002 from Dr. John L Wiberg, a psychiatrist from the VA which noted that appellant first
sought psychiatric treatment on October 13, 1995 and was diagnosed with depression, anxiety
and inability to concentrate. By decision dated December 16, 2008, the hearing representative
remanded appellant’s claim for additional development of the medical evidence regarding his
consequential right-knee injury finding a conflict of medical opinion evidence between
Drs. Arnold and Lotman for the Office and Dr. Gersoff and the VA physicians for appellant.

4

The hearing representative remanded the case for an impartial medical evaluation. The hearing
representative further found that the Office properly denied appellants’ claim for a consequential
emotional condition.
The Office referred appellant for an impartial medical examination with Dr. Jeffrey
Sabin, a Board-certified orthopedic surgeon. Appellant’s attorney objected to the selection of
Dr. Sabin, alleging that he was biased by his interest in maintaining his economic relationship
with the Office and predicable in his evaluations. Dr. Sabin completed a report on February 19,
2009 and reviewed the medical records. He found that there was no evidence of further
deterioration of the right knee due to the left knee incident. Dr. Sabin stated, “I cannot comment
or argue whether the patient had more pain after the left knee injury as that certainly could be
possible but again, no material change, I believe, would have occurred in the right knee to cause
that pain.” He concluded that appellant’s right knee condition was a natural progression of his
preexisting conditions and surgeries. By decision dated February 26, 2009, the Office denied
appellant’s claim for a consequential right knee injury resulting from his accepted left knee
condition.
Appellant, through his attorney, requested an oral hearing. He submitted a note dated
May 27, 2009 from Dr. Harvey J. Navrkal, a Board-certified orthopedic surgeon, described
appellant’s history of right and left knee injuries and his current findings. Dr. Navrkal stated, “I
do believe that it is clear that the injury and subsequent surgery on his left knee that occurred in
1991 was a partial and contributing factor of the ensuing degenerative cascade that lead to a need
for a total right knee arthroplasty that was performed in 2004. I believe that this is supported by
the fact that the patient does have an antalgic gait clearly document in his history as well as his
examination findings today.” Appellant testified at the oral hearing on June 26, 2009 and his
attorney argued that Dr. Sabin should not have been selected as the impartial medical examiner
as he was partners with Dr. Maruyama at the time that he served as the impartial medical
examiner in this case.
By decision dated August 27, 2009, the hearing representative found that Dr. Sabin’s
report represented the weight of the medical evidence and established that appellant did not have
a consequential right knee injury.
LEGAL PRECEDENT
It is an accepted principle of worker’s compensation law that when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause which is attributable to the employee’s own intentional conduct.
As is noted by Larson in his treatise on workers’ compensation, once the work-connected
character of any injury has been established, the subsequent progression of that condition
remains compensable so long as the worsening is not shown to have been produced by an
independent nonindustrial cause and so long as it is clear that the real operative factor is the

5

progression of the compensable injury, associated with an exertion that in itself would not be
unreasonable under the circumstances.2
A claimant bears the burden of proof to establish a claim for a consequential injury. As
part of this burden, he must present rationalized medical opinion evidence, based on a complete
factual and medical background, showing causal relationship. Rationalized medical evidence is
evidence which relates a work incident or factors of employment to a claimant’s condition, with
stated reasons of a physician. The opinion must be one of reasonable medical certainty and must
be supported by medical rationale explaining the nature of the relationship of the diagnosed
condition and the specific employment factors or employment injury.3
Section 8123(a) of the Federal Employees’ Compensation Act,4 provides, “If there is
disagreement between the physician making the examination for the United States and the
physician of the employee, the Secretary shall appoint a third physician who shall make an
examination.” A physician selected by the Office to serve as an impartial medical specialist
should be wholly free to make a completely independent evaluation and judgment. To achieve
this, the Office has developed specific procedures for the selection of impartial medical
specialists designed to provide safeguards against any possible appearance that the selected
physician’s opinion is biased or prejudiced. The procedures contemplate that impartial medical
specialists will be selected from Board-certified specialists in the appropriate geographical area
on a strict rotating basis in order to negate any appearance that preferential treatment exists
between a particular physician and the Office.5 The Federal (FECA) Procedure Manual (the
procedure manual) provides that the selection of referee physicians (impartial medical
specialists) must exclude physicians previously connected with the claim or claimant or
physicians in partnership with those already so connected.6
ANALYSIS
Appellant has alleged that he developed a consequential right-knee injury as a result of
his accepted left knee injury. His physicians from the VA supported this causal relationship.
The second opinion physicians selected by the Office, Drs. Arnold and Lotman, opined that there
was no causal relationship between appellant’s right knee replacement and his accepted left-knee
injury. Due to these opposing opinions, the Office found conflict of medical opinion evidence
requiring referral to an impartial medical specialist. The Board finds that there is a conflict of
medical opinion on the issue of whether appellant sustained a consequential right knee injury.
The Office referred appellant to Dr. Sabin to resolve this conflict.

2

Clement Jay After Buffalo, 45 ECAB 707, 715 (1994).

3

Charles W. Downey, 54 ECAB 421 (2003).

4

5 U.S.C. §§ 8101-8193, 8123(a).

5

B.P., 60 ECAB ___ (Docket No. 08-1457, issued February 2, 2009).

6

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4(b)(3)(b)
(October 1995).

6

Before the hearing representative and on appeal, appellant’s attorney argued that
appellant’s right knee replacement was contributed to by his accepted left knee injury due to his
antalgic gait and overcompensation while walking. He further alleged that Dr. Sabin was not
properly selected as the impartial medical examiner as his former partner, Dr. Maruyama, had
previously acted as an impartial medical examiner in this case. Appellant’s attorney alleged that
there was an unresolved conflict of medical opinion regarding appellant’s alleged consequential
right knee condition. The Board agrees.
Dr. Maruyama completed an impartial medical examination of appellant on
May 25, 2001. Dr. Jeffrey J. Sabin, a Board-certified orthopedic surgeon, was listed as partner in
the group letterhead at the time of this examination. By the time the Office referred appellant to
Dr. Sabin for an impartial medical examination, in 2009 he was no longer in partnership with
Dr. Maruyama, as indicated by his letterhead. However, the Board has held that a physician
serving as an impartial medical examiner should be one who is wholly free to make a completely
independent evaluation and judgment, untrammeled by a conclusion rendered on a prior
examination.7 The Board has held that a physician selected as an impartial medical specialist
cannot be considered completely independent when an associate has previously served as an
Office referral physician in the case.8
The importance of safeguarding the independence of impartial medical specialist is
recognized in the Office’s procedures. Under the Office’s procedures, “physicians previously
connected with the claim or the claimant or physicians in partnership with those already so
connected” may not be used as impartial medical specialists.9
The Board notes that the January 8, 2009 referral letter to Dr. Sabin advised that he have
no prior connection to the employee or employing establishment but did not apprise him of prior
association with physicians previously connected with the claim or claimant or those in
partnership with those so connected.10
As Dr. Sabin was a partner with Dr. Maruyama at the time that Dr. Maruyama conducted
an impartial examination of appellant, there is an appearance of impropriety due to their previous
association. The Board finds that Dr. Sabin was not properly selected as the impartial medical
examiner. The conflict of medical opinion evidence remains unresolved.
On remand, the Office should follow its procedures and refer appellant, a statement of
accepted facts and a list of specific questions to an appropriate Board-certified physician to
determine whether he sustained a consequential right knee injury due to his accepted left knee
conditions.
7

Ronald Santos, 53 ECAB 742 (2002); Raymond E. Heathcock, 32 ECAB 2004 (1981).

8

Id.

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4(b)(3)(b)
(October 1995).
10

Id. See D.L., 61 ECAB __ (Docket No. 09-1549, issued February 23, 2010); Joseph A. Muszel, (Docket No.
05-762, issued September 23, 2005).

7

CONCLUSION
The Board finds that the case is not in posture for decision due to unresolved conflict in
medical opinion.
ORDER
IT IS HEREBY ORDERED THAT the August 27, 2009 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for additional development
consistent with the decision of the Board.
Issued: December 6, 2010
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.P., Appellant
and
U.S. POSTAL SERVICE, La PUENTE POST
OFFICE, La Puente, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 20-1646
Issued: August 3, 2021

Case Submitted on the Record

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

JURISDICTION
On September 15, 2020 appellant filed a timely appeal from November 13, 2019 and
March 30, 2020 merit decisions and an April 9, 2020 nonmerit 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 has met his burden of proof to establish greater than
seven percent permanent impairment of his right upper extremity; (2) whether appellant received
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 9, 2020 decision, appellant submitted additional evidence to OWCP.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

an overpayment of compensation in the amount of $8,609.23 for the period December 9, 2015
through August 5, 2016, for which he was without fault, as he received schedule award
compensation at a percentage greater than to which he was entitled; (3) whether OWCP properly
denied appellant’s request for waiver of recovery of the overpayment; and (4) whether OWCP
properly denied appellant’s request for a prerecoupment hearing as untimely filed.
FACTUAL HISTORY
On January 11, 2012 appellant, then a 56-year-old letter carrier and truck driver, filed an
occupational disease claim (Form CA-2) alleging that he developed a labral tear of the right
shoulder and arthritis of the acromioclavicular (AC) joint due to factors of his federal employment,
including casing and carrying mail, pushing, pulling, bending, and lifting heavy parcels. OWCP
initially denied his claim and on August 20, 2012 accepted right shoulder impingement syndrome.
It paid appellant wage-loss compensation on the supplemental rolls from September 20, 2012
through May 3, 2013.
On January 11, 2013 Dr. Roy J. Caputo, a Board-certified orthopedic surgeon specializing
in hand surgery, performed a diagnostic and surgical arthroscopy of the right glenohumeral and
subacromial space, arthroscopic right shoulder subacromial decompression with bursectomy and
excision of coracoacromial ligament, arthroscopic debridement of type-1 labral tear, and
arthroscopic distal clavicectomy. He diagnosed right shoulder impingement syndrome, right
shoulder AC joint arthritis, questionable right shoulder labral tear, and right shoulder type-1
superior labral tear.
On April 28, 2014 appellant underwent a magnetic resonance arthrogram of the right
shoulder, which revealed the acromion process was surgically absent, superior displacement of the
humeral head in reference to the glenoid labrum, thinning of the supraspinatus tendon and
undersurface tear that appears to be full thickness, and intravasation of contrast material into the
superior aspect of the glenoid labrum consistent with a labral tear.
On December 29, 2015 appellant filed a claim for compensation (Form CA-7) for a
schedule award.
In a May 28, 2014 report, Dr. Caputo used the range of motion (ROM) methodology to
rate impairment pursuant to the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides).3 He noted that appellant reached
maximum medical improvement (MMI). Dr. Caputo diagnosed status post right shoulder
arthroscopic subacromial decompression with persistent pain and questionable right should rotator
cuff or labral tear. He opined that, pursuant to the ROM method, appellant had five percent
permanent impairment of the upper extremity. In an addendum report dated December 10, 2015,
Dr. Caputo provided an impairment rating using the sixth edition of the A.M.A., Guides.4 He

3

A.M.A., Guides (5th ed. 2001).

4

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

2

opined that appellant had eight percent permanent impairment of the right upper extremity
pursuant to the ROM method, applying Table 15-34, Table 15-28, Table 15-29, and Table 15-30.
On January 6, 2016 Dr. Arnold T. Berman, a Board-certified orthopedic surgeon serving
as an OWCP district medical adviser (DMA), noted that appellant’s treating physician, Dr. Caputo,
used the ROM method for calculating impairment, however, diagnostic-based calculations were
required when possible under the A.M.A., Guides. He calculated appellant’s impairment based on
the diagnosis-based impairment (DBI) methodology and found 11 percent permanent impairment
of the right upper extremity. Dr. Berman noted that, pursuant to the A.M.A., Guides an examiner
is instructed to use the method with the highest causally related impairment rating for the
impairment calculation and, in this case, the DBI method provided the higher rating.
By decision dated August 2, 2016, OWCP granted appellant a schedule award for 11
percent permanent impairment of the right upper extremity (right shoulder). The period of the
award ran for 34.32 weeks from December 9, 2015 through August 5, 2016 at a weekly
compensation rate of $724.46.
On November 11, 2016 Dr. Caputo performed a diagnostic arthroscopy of the
glenohumeral and subacromial space, arthroscopic right shoulder biceps tenotomy with
debridement of the superior labrum, arthroscopic right shoulder biceps tenodesis, arthroscopic
right shoulder rotator cuff debridement and repair, and extensive debridement with synovectomy
of the anterior superior glenohumeral joint and scar tissue in the subacromial space. He diagnosed
right shoulder superior labral tear with biceps tenosynovitis, rotator cuff tear with fraying of the
biceps laxity of the superior labrum, and partial superior surface laminated tear of the
supraspinatus.
Appellant subsequently submitted an October 26, 2018 report from Dr. Caputo, who
diagnosed status post right shoulder arthroscopy, decompression, biceps tenodesis, and repair of
the rotator cuff, healed with residuals. Dr. Caputo referred to the A.M.A., Guides and utilized the
DBI rating method to find that, under Table 15-5 (Shoulder Regional Grid), page 403, the class of
diagnosis (CDX) for a rotator cuff injury full-thickness tear was class 1 with a default value of
five. He assigned a grade modifier for functional history (GMFH) of two. Dr. Caputo assigned a
grade modifier for physical examination (GMPE) of one. He assigned a grade modifier for clinical
studies (GMCS) of two. Dr. Caputo utilized the net adjustment formula (GMFH - CDX) + (GMPE
- CDX) + (GMCS – CDX) = (2-1) + (1-1) + (2-1) = +2, which resulted in a grade E or 13 percent
permanent impairment of the right upper extremity.
On August 16, 2019 appellant filed a claim for an additional schedule award.
On September 24, 2019 OWCP referred appellant’s case to Dr. Jovito Estaris, a Boardcertified orthopedic surgeon serving as a DMA, to provide an opinion on permanent impairment
under the standards of the A.M.A., Guides. Referencing the A.M.A., Guides,5 Dr. Estaris
calculated the extent of appellant’s permanent impairment of the right upper extremity using the

5

Id.

3

DBI methodology. Referring to the shoulder regional grid, Table 15-5,6 he identified the diagnosis
as a full-thickness rotator cuff tear, class 1, with a default value of five. Referring to Table 15-7
and Table 15-8,7 Dr. Estaris assigned a GMFH of two for pain of the right shoulder with regular
activity. He assigned a GMPE of one for mild limitation of ROM of the right shoulder. Dr. Estaris
assigned a GMCS of four based on an arthrogram that revealed rotator cuff tear and labral tear.
Applying the net adjustment formula changed appellant’s default grade C diagnosis of five percent
permanent impairment to a grade E diagnosis, resulting in seven percent permanent impairment of
the right upper extremity. Dr. Estaris addressed the discrepancies between his evaluation and
Dr. Caputo who found 13 percent upper extremity impairment based on the DBI method and
indicated that he believed that Dr. Caputo made a copying error and that the correct impairment is
7 percent right upper extremity impairment. He noted that MMI was October 26, 2018. Dr. Estaris
noted that since the previous schedule award was for 11 percent permanent of the right shoulder,
and since current impairment rating is also for the right shoulder, “the current impairment rating
is INCLUDED in the previous award.” (Emphasis in the original.) He concluded, therefore, that
“NO ADDITIONAL AWARD INCURRED.” (Emphasis in the original.)
By decision dated November 13, 2019, OWCP denied appellant’s claim for an additional
schedule award. It determined that he had not met his burden of proof to establish greater than
seven percent permanent impairment of his right upper extremity, for which he previously received
a schedule award. OWCP explained that, as appellant was previously paid a schedule award for
11 percent permanent impairment of his right upper extremity, the medical evidence did not
support an increase in the permanent impairment already compensated. It indicated that he
received an overpayment for four percent of the right upper extremity and his case would be
considered for overpayment of the schedule award.
On December 17, 2019 appellant requested reconsideration and submitted a December 5,
2019 supplemental report from Dr. Caputo. Dr. Caputo concurred in the DMA’s rating and further
noted that the DMA was correct in noting that his impairment rating provided on October 26, 2018
contained a typographical error. He opined that pursuant to Table 15-5, page 403 of the A.M.A.,
Guides, a class 1 diagnosis of full-thickness rotator cuff injury equates to seven percent right upper
extremity impairment. However, Dr. Caputo questioned how a schedule award of 11 percent,
issued in 2016, can be rescinded due to expected improvement in appellant’s condition as a result
of surgery in 2017.
By a decision dated January 21, 2020, OWCP denied appellant’s request for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
In a memorandum dated February 11, 2020, OWCP indicated that a potential overpayment
was identified. It noted that appellant had received a schedule award for 11 percent permanent
impairment, but upon further development, on October 11, 2019, the DMA found 7 percent
permanent right upper extremity impairment. OWCP noted that, since he was originally paid for
the 11 percent permanent right upper extremity impairment of $25,807.39, and was only due 7

6

Id. at 403.

7

Id. at 406 and 408, respectively.

4

percent permanent impairment for the right upper extremity or $17,198.16, he was overpaid
$8,609.23.
On February 21, 2020 OWCP informed appellant of its preliminary overpayment
determination that he had received an $8,609.23 overpayment of schedule award compensation for
the period December 9, 2015 through August 5, 2016. It explained that he had received
$25,807.39 for 11 percent permanent impairment of the right upper extremity when he was only
entitled to $17,198.16 for 7 percent permanent impairment of the right upper extremity because
his condition improved, creating an overpayment for the period December 9, 2015 through
August 5, 2016. OWCP also made a preliminary overpayment determination that appellant was
without fault in the creation of the overpayment. It advised him that he could submit evidence
challenging the fact or amount of the overpayment, or request waiver of recovery of the
overpayment. OWCP provided an overpayment action request form and informed appellant that
he could submit additional evidence in writing or at prerecoupment hearing, but that a
prerecoupment hearing must be requested within 30 days of the date of the written notice of
overpayment. It requested that he complete and return an overpayment recovery questionnaire
(Form OWCP-20) within 30 days even if he was not requesting waiver of recovery of the
overpayment. OWCP requested that appellant submit supporting financial documentation,
including copies of income tax returns, bank account statements, bills, pay slips, and any other
records to support income and expenses. It advised him that it would deny waiver of recovery of
the overpayment if he failed to furnish the requested financial information within 30 days. No
response was received.
By decision dated March 30, 2020, OWCP’s hearing representative finalized the
preliminary overpayment determination, finding that appellant was overpaid compensation in the
amount of $8,609.23 for the period December 9, 2015 through August 5, 2016, because he received
schedule award compensation for 11 percent permanent impairment of the right upper extremity
although the evidence established that he now had 7 percent permanent impairment. He
determined that, although appellant was without fault in the creation of the overpayment, the
recovery of overpayment was not subject to waiver because appellant had not responded to the
preliminary overpayment determination and did not request waiver of recovery of the
overpayment. The hearing representative required recovery of the overpayment in full.
On April 2, 2020 OWCP received an overpayment action request form, dated March 25,
2020, in which appellant requested a prerecoupment hearing. Appellant requested waiver of
recovery of the overpayment because he was found to be without fault in the creation of the
overpayment. He submitted a Form OWCP-20, dated March 25, 2020, which indicated that he
had a monthly income of $3,251.17 and monthly expenses of $3,990.37.
By decision dated April 9, 2020, OWCP denied appellant’s request for a prerecoupment
hearing as untimely filed. It found that, because his request was not filed within 30 days of the
February 21, 2020 preliminary overpayment determination, he was not entitled to a prerecoupment
hearing as a matter of right.

5

LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA,8 and its implementing federal 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. However,
FECA does not specify the manner in which the percentage loss of a member shall be determined.
The method used in making such a determination is a matter which rests in the discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. 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 impairment for the upper extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the upper extremity
to be rated. With respect to the shoulder, the relevant portion of the arm for the presence case
reference is made to Table 15-5 (Shoulder Regional Grid) beginning on page 401. After the CDX
is determined from the Shoulder Regional Grid (including identification of a default grade value),
the net adjustment formula is applied using the GMFH, GMPE, and GMCS.11 The net adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).12
The A.M.A., Guides also provide that the ROM impairment methodology is to be used as
a stand-alone rating for upper extremity impairments when other grids direct its use or when no
other DBI sections are applicable.13 If ROM is used as a standalone approach, the total of motion
impairment for all units of function must be calculated. All values for the joint are measured and
added.14 Adjustments for functional history may be made if the evaluator determines that the
resulting impairment does not adequately reflect functional loss and functional reports are
determined to be reliable.15

8

Supra note 1.

9
For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides (6th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017).
10

See K.J., Docket No. 19-1492 (issued February 26, 2020); P.R., Docket No. 19-0022 (issued April 9, 2018);
Isidoro Rivera, 12 ECAB 348 (1961).
11

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

12

Id. at 411.

13

Id. at 461.

14

Id. at 473.

15

Id. at 474.

6

OWCP issued FECA Bulletin No. 17-06 to explain the use of the DBI methodology versus
the ROM methodology for rating of upper extremity impairments.16 Regarding the application of
ROM or DBI impairment methodologies in rating permanent impairment of the upper extremities,
FECA Bulletin No. 17-06 provides in pertinent part:
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the
[A.M.A.,] Guides allow for the use of both the DBI and ROM methods to calculate
an impairment rating for the diagnosis in question, the method producing the
higher rating should be used.” (Emphasis in the original.)17
The Bulletin further advises:
“If the rating physician provided an assessment using the ROM method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE [claims examiner].”18
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.19
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish greater than
seven percent permanent impairment of his right upper extremity, for which he previously received
a schedule award.
OWCP initially awarded appellant 11 percent right upper extremity impairment. On
November 11, 2016 appellant underwent additional right shoulder arthroscopy performed by
Dr. Caputo. On August 16, 2019 he filed a claim for an additional schedule award.
In support thereof, he submitted an October 26, 2018 report wherein Dr. Caputo diagnosed
status post right shoulder arthroscopy, decompression, biceps tenodesis, and repair of the rotator
cuff, healed with residuals. He referred to the A.M.A., Guides and utilized the DBI rating method
to find that, under Table 15-5 (Shoulder Regional Grid), page 403, the class of diagnosis for a
rotator cuff injury full thickness tear resulted in a class 1 impairment with a default value of five.
16

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

17

Id.

18

Id.; see also H.H., Docket No. 19-1530 (issued June 26, 2020); A.G., Docket No. 18-0329 (issued July 26, 2018).

19

Supra note 9 at Chapter 2.808.6(f); P.W., Docket No. 19-1493 (issued August 12, 2020).

7

Dr. Caputo assigned a GMFH of two, a GMPE of one, and a GMCS of two. He utilized the net
adjustment formula (GMFH - CDX) + (GMPE - CDX) + (GMCS – CDX) = (2 - 1) + (1 - 1) +
(2-1) = +2, which resulted in grade E. Although Dr. Caputo noted 13 percent permanent
impairment of the right upper extremity as it related to the right shoulder, on December 5, 2019 he
concurred in the DMA’s rating noting that the DMA was correct that his impairment rating
provided on October 26, 2018 contained a typographical error. He opined that pursuant to Table
15-5, page 403 of the A.M.A., Guides, a class 1 diagnosis of full-thickness rotator cuff injury
equates to seven percent permanent impairment of the right upper extremity.
In an October 11, 2019 report, Dr. Estaris, serving as a DMA, reviewed the medical
evidence of record including Dr. Caputo’s October 26, 2018 report and noted that, under the DBI
methodology for a rotator cuff tear with residual loss, the most that appellant could be awarded
was seven percent permanent impairment of the right upper extremity. Using the DBI rating
method, under Table 15-5, the CDX for appellant’s left rotator cuff tear resulted in a class 1, grade
C, impairment with a default value of five percent. Dr. Estaris calculated a GMFH of two, GMPE
of one, and GMCS of four. He utilized that the net adjustment formula, (GMFH - CDX) +
(GMPE - CDX) + (GMCS - CDX) = (2-1) + (1-1) + (4-1) = +4, which he indicated resulted in a
grade E or seven percent permanent impairment of the right upper extremity.20 Dr. Estaris further
calculated appellant’s impairment using the ROM method Table 15-34, page 475 and zero percent
permanent impairment.21
The Board finds that Dr. Estaris, serving as DMA, explained with rationale how he arrived
at his conclusion that appellant sustained seven percent permanent impairment of the right upper
extremity under the A.M.A., Guides.22 As the record contains no other probative, rationalized
medical opinion that, supports he had greater impairment of the right upper extremity based upon
the A.M.A., Guides, he has not met his burden of proof to establish greater than seven percent
permanent impairment of the right upper extremity for which he received schedule award
compensation.23

20
See A.M.A., Guides (6th ed. 2009) 405-12. Table 15-5 also provides that, if motion loss is present for a claimant
with certain diagnosed conditions, permanent impairment may alternatively be assessed using section 15.7 (ROM
impairment). Such a ROM rating stands alone and is not combined with a DBI rating. Id. at 401-05, 475-78.
21
Dr. Estaris noted Dr. Caputo’s ROM findings of the right shoulder for flexion 140 degrees for three percent
impairment, abduction 140 degrees for three percent impairment, external rotation 60 degrees for zero impairment,
and internal rotation 50 degrees for two percent impairment. Findings for the unaffected left shoulder for flexion 160
degrees for three percent impairment, abduction 160 degrees for three percent impairment, external rotation 70 degrees
for zero impairment, and internal rotation 70 degrees for two percent impairment. The ROM method resulted in zero
impairment. See A.M.A., Guides, 15.7a Clinical Measurements of Motion, Assessing Motion, page 464, which
provides that both extremities should be examined whenever possible, since the right vs. left comparisons between
the affected and unaffected side are useful to help determine the “normal” baseline.
22

See O.F., Docket No. 19-0986 (issued February 12, 2020); K.J., Docket No. 19-0901 (issued December 6, 2019).

23

See J.H., Docket No. 18-1207 (issued June 20, 2019).

8

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.
LEGAL PRECEDENT -- ISSUE 2
Section 8102(a) of FECA24 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 his or her duty.25 Section 8129(a) of FECA provides, in pertinent part:
“When an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which an
individual is entitled.”26
If a claimant received a schedule award and the medical evidence does not support the
degree of permanent impairment awarded, an overpayment of compensation may be created.27
Claims for an increased schedule award based on the same edition of the A.M.A., Guides are
subject to overpayment.28
ANALYSIS -- ISSUE 2
The Board finds that appellant received an overpayment of compensation in the amount of
$8,609.23, for which he was without fault, for the period December 9, 2015 through
August 5, 2016.
In the present case, appellant received $25,807.39 in schedule award compensation for 11
percent permanent impairment of his right upper extremity. However, for the reasons explained
above, he was only entitled to receive $17,198.16 in schedule award compensation for seven
percent permanent impairment of his right upper extremity. The difference between these two
amounts, $8,609.23, constitutes an overpayment of compensation. As noted above, OWCP’s
procedures allow for the declaration of such an overpayment as both awards were calculated under
the same edition of the A.M.A., Guides. Therefore, OWCP properly determined that appellant
received an $8,609.23 overpayment.

24

Supra note 1.

25

5 U.S.C. § 8102(a).

26

Id. at § 8129(a).

27

Supra note 9 at Chapter 2.808.9(e) (February 2013).

28

Id. See also W.M., Docket No. 13-0291 (issued June 12, 2013).

9

LEGAL PRECEDENT -- ISSUE 3
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless incorrect payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of FECA or would be against equity and good
conscience.29 Section 10.438 of OWCP’s regulations provide that the individual who received the
overpayment is responsible for providing information about income, expenses, and assets as
specified by OWCP. This information is needed to determine whether or not recovery of an
overpayment would defeat the purpose of FECA or be against equity and good conscience. The
information is also used to determine the repayment schedule, if necessary.30
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver of
recovery of the overpayment must be considered, and repayment is still required unless adjustment
or recovery of the overpayment would defeat the purpose of FECA or be against equity and good
conscience.31 However, appellant had the responsibility to provide financial information to
OWCP32 and failed to do so.
In its preliminary overpayment determination, dated February 21, 2020, OWCP requested
that appellant provide a completed Form OWCP-20 and supporting financial documentation,
including copies of income tax returns, bank account statements, bills and canceled checks, pay
slips, and any other records to support income and expenses. It advised that it would deny waiver
of recovery if he failed to furnish the requested financial information within 30 days. Appellant
did not provide a completed Form OWCP-20 or submit financial information necessary for OWCP
to determine if recovery of the overpayment would defeat the purpose of FECA or be against
equity and good conscience.
Accordingly, as appellant did not submit the information required under 20 C.F.R. § 10.438
of OWCP’s regulations to determine his eligibility for waiver, OWCP properly denied waiver of
recovery of the overpayment.
LEGAL PRECEDENT -- ISSUE 4
OWCP’s regulations provide that a claimant may request a prerecoupment hearing with
respect to an overpayment.33 The date of the request is determined by the postmark or other
29

5 U.S.C. § 8129.

30

20 C.F.R. § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

31

Id. at § 10.436.

32

Id. at § 10.438; S.P., Docket No. 19-1318 (issued July 31, 2020).

33
Id. at § 10.432; see S.O., Docket No. 20-0753 (issued October 28, 2020); E.M., Docket No. 19-0857 (issued
December 31, 2019); D.H., Docket No. 19-0384 (issued August 12, 2019).

10

carrier’s date marking.34 Failure to request the prerecoupment hearing within 30 days constitutes
a waiver of the right to a hearing.35 The only right to a review of a final overpayment decision is
with the Board.36 The hearing provisions of section 8124(b) of FECA do not apply to final
overpayment decisions.37
ANALYSIS -- ISSUE 4
The Board finds that OWCP properly denied appellant’s request for a prerecoupment
hearing as untimely filed.
OWCP issued a preliminary overpayment determination on February 21, 2020. It advised
appellant that he had 30 days from that date to request a prerecoupment hearing.
On April 2, 2020 OWCP received an overpayment action request form, dated March 25,
2020, with no legible postmark, in which he requested a prerecoupment hearing. The timeliness
of a request for a prerecoupment hearing is determined by the postmark date or other carrier’s
marking showing when the request was sent to OWCP.38 As appellant’s request for a
prerecoupment hearing was dated March 25, 2020, more than 30 days after the February 21, 2020
preliminary overpayment determination, it was untimely filed. Therefore, OWCP properly denied
his request for a prerecoupment hearing as untimely filed.39
The Board further finds that, as appellant’s request form was mailed to OWCP’s Branch
of Hearings and Review, it was properly treated as a request for a hearing. As noted, the hearing
provisions of section 8124(b) are not applicable to final overpayment decisions. OWCP’s
regulations provide that, when a final overpayment decision is issued, there is no right to a hearing
or a review of the written record, and OWCP does not have discretion to grant such a request.40
The only right to appeal is with the Board.41
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish greater than
seven percent permanent impairment of his right upper extremity, for which he previously received
34

Id. at § 10.439, 10.616(a); see A.B., Docket No. 18-1172 (issued January 15, 2019); see also B.W., Docket No.
18-1004 (issued October 24, 2018); C.R., Docket No. 15-0525 (issued July 20, 2015).
35

Id.

36

20 C.F.R. § 10.440(b).

37

5 U.S.C. § 8124(b); see G.L., Docket No. 19-0297 (issued October 23, 2019).

38

A.B., Docket No. 18-1172 (issued January 15, 2019).

39

See A.B., id.; E.V., Docket No. 17-1328 (issued December 11, 2017); see also R.U., Docket No. 16-0027 (issued
March 24, 2017).
40

Supra note 36.

41

5 U.S.C. § 8124(b); see S.O., supra note 33; G.L., supra note 37.

11

a schedule award. The Board also finds that OWCP properly determined that he received an
overpayment of compensation in the amount of $8,609.23 for the period December 9, 2015
through August 5, 2016, for which he was without fault and properly denied waiver of recovery of
the overpayment. The Board further finds that OWCP properly denied appellant’s request for a
prerecoupment hearing as untimely filed.
ORDER
IT IS HEREBY ORDERED THAT the April 9 and March 30, 2020 and November 13,
2019 decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: August 3, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

12


United States Department of Labor
Employees’ Compensation Appeals Board

_________________________________________
B.B., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Sacramento, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)
)

Docket No. 20-0711
Issued: May 21, 2021

Case Submitted on the Record

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

On February 10, 2020 appellant filed a timely appeal from an October 29, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate
Boards assigned Docket No. 20-0711.1
On April 13, 1993 appellant, then a 42-year-old group secretary, filed an occupational
disease claim (Form CA-2) alleging that she developed extended overuse tendinitis due to factors
of her federal employment, including repetitive motions using a computer. OWCP accepted the
claim for tenosynovitis of the right hand and wrist, right rotator cuff syndrome, right rotator cuff
tear or rupture of right shoulder, right carpal tunnel syndrome, and right trigger finger. Appellant
stopped work on April 12, 1993 and did not return. OWCP paid her wage-loss compensation on
the periodic rolls as of June 16, 2002.

1

The Board notes that OWCP received additional evidence following the October 29, 2019 decision. 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.

A notification of personnel action (Form SF-50) dated September 27, 2002 documented
that appellant was removed from employment, effective August 30, 1997. The form noted her
service computation date as February 15, 1986 and indicated that her retirement plan was “(1) K.”
On December 4, 2018 OWCP forwarded a Federal Employees’ Retirement System
(FERS)/Social Security Administration (SSA) dual benefits calculation transmittal to SSA to
obtain information as to whether an offset of FECA compensation benefits was required.
On January 30, 2019 OWCP received from SSA a January 22, 2019 FERS/SSA dual
benefits calculation form which indicated that appellant had been in receipt of SSA age-related
retirement benefits since 2016. The form showed appellant’s SSA benefit rates with and without
a FERS offset. Beginning May 2016, the SSA rate with FERS was $867.19 and without FERS
was $442.90, beginning December 2016, the SSA rate with FERS was $871.00 and without FERS
was $444.00, beginning December 2017, the SSA rate with FERS was $888.00 and without FERS
was $453.00, and beginning December 2018, the SSA rate with FERS was $912.50 and without
FERS was $465.50.
OWCP completed a FERS offset calculation worksheet on February 27, 2019. It calculated
the overpayment amount by determining the daily FERS offset amount and multiplying that
amount by the number of days in each period May 1, 2016 to March 2, 2019, resulting in a total
overpayment amount of $14,726.51. The form indicated that, from May 1, 2016 through
November 30, 2017, appellant received an overpayment in the amount of $2,998.35, from
December 1, 2016 through November 30, 2017, she received an overpayment in the amount of
$5,138.08, from December 1, 2017 through November 30, 2018, she received an overpayment in
the amount of $5,234.34, and from December 1, 2018 through March 2, 2019, she received an
overpayment in the amount of $1,355.74.
In a March 1, 2019 letter, OWCP informed appellant that it would begin deducting the
portion of SSA age-related retirement benefits attributable to her federal service from her 28-day
periodic compensation benefits.
On March 27, 2019 OWCP issued a preliminary overpayment determination, finding that
an overpayment of compensation in the amount of $14,726.51 had been created because it had
failed to reduce appellant’s wage-loss compensation payments for the period May 1, 2016 through
March 2, 2019 to offset her SSA age-related retirement benefits that were attributable to federal
service. It also determined that she was with fault in the creation of the overpayment because she
failed to provide information she knew, or should have known, to be material. OWCP requested
that appellant submit a completed overpayment recovery questionnaire (Form OWCP-20) to
determine a reasonable repayment method and advised appellant that she could request a waiver
of the overpayment. It further requested that she provide supporting financial documentation,
including copies of income tax returns, bank account statements, bills, pay slips, and any other
records to support income and expenses. Additionally, OWCP further notified appellant that,
within 30 days of the date of the letter, she could request a telephone conference, a final decision
based on the written evidence, or a prerecoupment hearing.
On April 23, 2019 appellant requested a prerecoupment hearing before a representative of
OWCP’s Branch of Hearings and Review. She requested waiver of recovery of the overpayment

2

and argued that she was not at fault because she did not understand that she had to notify OWCP
when she turned 66, she had answered OWCP’s questions every 18 months regarding her status to
the best of her ability.
Appellant completed and returned the Form OWCP-20 and reported total monthly income
of $10,631.00 and total monthly expenses of $6,508.70. She provided copies of financial
documentation including mortgage statements, bank statements, and tax returns.
A prerecoupment hearing was held on August 15, 2019. On September 27, 2019 appellant
submitted additional financial information regarding her income and expenses.
By decision dated October 29, 2019, OWCP’s hearing representative finalized the
preliminary overpayment determination, finding that appellant had received an overpayment of
compensation in the amount of $14,726.51 for the period May 1, 2016 through March 2, 2019,
because she concurrently received SSA age-related retirement benefits and FECA wage-loss
compensation benefits without a proper offset. The hearing representative found that she was
without fault in the creation of the overpayment, but denied waiver of recovery of the overpayment
and ordered recovery of the overpayment by deducting $375.00 every 28 days from appellant’s
continuing compensation payments.
The Board finds that OWCP has not met its burden of proof to establish that appellant
received an overpayment of compensation.
OWCP determined that appellant received an overpayment of compensation during the
period May 1, 2016 to March 2, 2019, because she concurrently received FECA compensation and
SSA age-related retirement benefits without an appropriate offset. The case record, however
contains a Form SF-50 dated September 27, 2002, which indicates that she was removed from
employment as of August 30, 1997. It therefore remains unclear whether appellant was covered
under a federal retirement annuity program during the period of the overpayment.
As OWCP has not established that appellant received an overpayment of compensation
during the period May 1, 2016 to March 2, 2019, the Board finds that OWCP has not met its burden
of proof.2

2
In light of the Board’s findings regarding the fact and amount of overpayment, the remaining issues of waiver and
recovery of the overpayment are rendered moot.

3

IT IS HEREBY ORDERED THAT the October 29, 2019 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: May 21, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4