United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, West Haven, CT, Employer
__________________________________________

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

Docket No. 18-1153
Issued: January 2, 2019

Case Submitted on the Record

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

JURISDICTION
On May 17, 2018 appellant, through counsel, filed a timely appeal from an April 5, 2018
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 OWCP properly reduced appellant’s compensation, effective May 29,
2016, under 5 U.S.C. § 8113(b) for failure, without good cause, to undergo vocational
rehabilitation efforts, as directed.
FACTUAL HISTORY
On January 27, 2012 appellant, then a 46-year-old nursing assistant, filed a traumatic injury
claim (Form CA-1) alleging a low back injury on January 26, 2012 due to lifting and adjusting a
patient in bed while in the performance of duty. She stopped work that same day.
OWCP accepted appellant’s claim for sciatica, left-sided lumbar radiculopathy, lumbar
spondylosis, and lumbago. It paid her disability compensation on the daily rolls beginning
March 21, 2012 and on the periodic rolls beginning August 26, 2012.
On April 22, 2013 Dr. Peter G. Whang, an attending Board-certified orthopedic surgeon,
performed OWCP-approved low back surgery, including anterior lumbar interbody fusion with
instrumentation and bone graft substitute at L5-S1, and posterior fusion with instrumentation, bone
graft substitute, and laminotomy at L5-S1.
Appellant participated in physical therapy sessions and continued to periodically visit
Dr. Whang for treatment of her back condition. In an October 1, 2015 report, Dr. Whang noted
that her low back condition was responding well to conservative treatment without a need for
steroid injections. He diagnosed lumbar strain and chronic low back pain secondary to L5-S1 disc
degeneration (status post fusion) and indicated that appellant could return to work “under lightduty conditions at least temporarily.”
OWCP referred appellant for a second opinion examination to Dr. Balazs B. Somogyi, a
Board-certified orthopedic surgeon. It requested that Dr. Somogyi provide an opinion on
appellant’s employment-related residuals and ability to work.
In an October 14, 2015 report, Dr. Somogyi detailed the findings of his physical
examination he conducted on that date. Appellant did not report low back pain at the time of
examination, but indicated that at times she had such pain at the 7/10 level. Dr. Somogyi advised
that the examination revealed normal results upon bilateral straight leg raising and that appellant
had no sensory abnormalities in her back or lower extremities. He diagnosed history of
lumbosacral sprain/strain, degenerative arthritis of the lumbosacral spines, and status post anterior
fusion at L5-S1, and he indicated that appellant could return to full-time work in accordance with
his attached work restrictions. In an attached October 23, 2015 work capacity evaluation form
(Form OWCP-5c), Dr. Somogyi indicated that appellant could work eight hours per day with
restrictions of lifting up to 40 pounds for four hours per day, twisting for two hours per day, and
bending/stooping for two hours per day.
In October 2015 OWCP referred appellant to an OWCP-sponsored vocational
rehabilitation program designed to return her to work. It indicated that the opinion of Dr. Somogyi

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showed that appellant was physically capable of performing work on a full-time basis subject to
his restrictions.
Appellant’s vocational rehabilitation counselor initially met with appellant on
November 17, 2015. He discussed appellant’s educational and vocational background, noting that
she obtained a nursing assistant certificate from the University of New Haven and worked as a
nursing assistant since the 1980s. Appellant reported using computers for her work with the
employing establishment and advised that she was familiar with Microsoft Word and Excel
software. In December 2015, the counselor conducted a transferable work skills analysis and
noted that appellant expressed dismay that the employing establishment was unable to identify a
position for her at her former worksite. He began to evaluate potential positions outside the
employing establishment which he felt were within her physical and vocational capabilities.
On February 1, 2016 appellant’s vocational rehabilitation counselor conducted a state labor
market survey and determined that appellant was capable of working on a full-time basis as an
office assistant/office clerk, a position which was reasonably available in appellant’s commuting
area with an average wage of $480.00 per week.3 According to the Department of Labor’s
Dictionary of Occupational Titles (DOT), the position was sedentary in nature and required
occasional lifting of up to 10 pounds. The position involved entering information into a computer,
preparing correspondence on a computer, and performing other clerical duties such as
photocopying and filing documents.
In a February 22, 2016 rehabilitation action report (Form OWCP-44), appellant’s
vocational rehabilitation counselor indicated that on February 11, 2016 he texted appellant on her
mobile telephone advising her to contact him in order to discuss a training program under
consideration, but that appellant did not respond to the text message.4 On February 15, 2016 the
counselor sent a letter to appellant’s address of record asking that she contact him as soon as
possible. He noted in his February 22, 2016 report that appellant had not responded to his inquiries
and that he was recommending placing appellant’s rehabilitation case in interrupted status until
clarification was obtained regarding her noncommunication.
In a February 23, 2016 letter, OWCP advised appellant of its determination that she had
failed to participate in vocational rehabilitation efforts. It informed her that an individual who
refuses or impedes a vocational rehabilitation effort without good cause after testing has been
accomplished will have his or her compensation reduced based on what would have been his or
her wage-earning capacity had the training been successfully completed. OWCP directed
appellant to make a good faith effort to participate in the rehabilitation effort within 30 days or, if
she believed she had good cause for not participating in the effort, to provide reasons and
supporting evidence of such good cause within 30 days. It advised that if these instructions were
not followed within 30 days action would be taken to reduce her compensation.
3
The counselor indicated that the results of the transferable skills analysis showed that appellant was capable of
performing the position of office assistant/office clerk. However, he felt that additional training in a medical
coder/assistant program might provide further incentive for employers to hire her.
4
The counselor initially telephoned appellant’s landline, but the voice mail was full and he was unable to leave a
message.

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Appellant telephoned her vocational rehabilitation counselor on February 23, 2016 and
asserted that she did not receive his February 11, 2016 text message because she did not know how
to receive and send text messages on her mobile telephone. She also asserted that she did not know
how to delete messages from her landline voice mail. Appellant advised her counselor that she
had not been feeling well with respect to her back and that she did not know whether she could
attend any vocational rehabilitation training program due to her condition. She continued to
express her hope that she would be able to return to work for the employing establishment. The
counselor explained to appellant that the opinion of Dr. Somogyi defined her work capabilities at
present and advised her that she needed to take steps so she could receive telephone messages.5 In
a March 1, 2016 vocational rehabilitation report, she indicated, “Given the [injured workers’]
current complaints and stated limitation, it is difficult to move ahead with any vocational planning
training or job placement.” He indicated that he was placing appellant’s case in interrupted status
as of March 17, 2016.
Appellant submitted a February 18, 2016 report from Dr. Whang who noted that appellant
presented with complaints of back pain. Dr. Whang reported the findings of his examination on
that date, diagnosed lumbar strain and L5-S1 disc degeneration (status post minimally invasion
fusion), and indicated that appellant could return to light-duty work. Appellant also submitted
June 8 and July 8, 2015 reports from Amy Morocco, an attending physical therapist, and a
March 20, 2016 report from Rebecca J. Juliano, another attending physical therapist.6
In an April 4, 2016 vocational rehabilitation report, appellant’s vocational rehabilitation
counselor indicated that he telephoned appellant on April 4, 2016 at which time she advised that
she could not attend any vocational rehabilitation training program due to her back condition.
Appellant noted that she assumed that her attending physician was providing reports about her
back condition. The counselor again advised appellant that the opinion of Dr. Somogyi defined
her work capabilities at present. In a May 3, 2016 report, he indicated that he was closing
appellant’s vocational rehabilitation file because she had reported that she could not attend any
vocational rehabilitation training program due to her back condition.
By decision dated May 5, 2016, OWCP reduced appellant’s compensation effective
May 29, 2016 under 5 U.S.C. § 8113(b) to reflect her loss of wage-earning capacity had she
continued to participate in vocational rehabilitation efforts. It determined that she had failed,
without good cause, to undergo vocational rehabilitation as directed. With respect to her wageearning capacity, it further found that, if appellant had participated in good faith in vocational
rehabilitation, she would have been able to perform the position of office assistant/office clerk and
it reduced her compensation based on her ability to earn wages in this position.
On September 23, 2016 appellant requested reconsideration of OWCP’s May 5, 2016
decision. OWCP submitted a June 2, 2016 report from Dr. Whang who reported the findings of
5
Appellant indicated that an employing establishment official advised her that she could return to work for the
employing establishment after her attending physician had “released” her to work, but the counselor advised her she
should not wait for such a report to participate in vocational rehabilitation efforts because the opinion of Dr. Somogyi
showed that she could currently work with restrictions.
6
The March 20, 2016 report of Ms. Juliano was countersigned by Dr. Adedayo Adetola, an attending Boardcertified internist.

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his examination on that date. Dr. Whang advised that the examination showed some limitation of
back motion, but that motor and sensory testing of the lower extremities was normal. He indicated
that appellant was motivated to return to work in some capacity and that he would do what he
could to facilitate the process. On July 18, 2016 Dr. Whang noted that appellant had worsening
back pain complaints, but posited that it was possible for her to return to work “with certain
limitations.” He reported examination findings similar to those obtained on June 2, 2016.7
In an August 10, 2016 report, Dr. Whang noted that the diagnostic testing of record showed
that appellant had a solid fusion at L5-S1, but that she had recently been complaining of increased
back and left lower extremity symptoms. He reported examination findings similar to those
obtained on June 2 and July 18, 2016. Dr. Whang indicated, “With her recent exacerbation, the
patient does not feel as if she would be able to return to work in any capacity at this point, so I will
reevaluate her again with the hopes that we can at least get her cleared for light-duty work or some
other type of work activity with restrictions.” In an August 10, 2016 letter, he noted, “[Appellant]
was seen in my clinic on August 10, 2016. She is not cleared to return to work until September 12,
2016, pending recheck.” On September 1, 2016 Dr. Whang indicated that he hoped to get
appellant back to work at some point, at least in some capacity. On October 21, 2016 he noted
that it would be difficult for appellant to return to work in her previous capacity at the employing
establishment.8
By decision dated January 4, 2017, OWCP denied modification of its May 5, 2016
decision. It found that OWCP had properly determined that appellant had failed, without good
cause, to undergo vocational rehabilitation as directed, and that it had properly reduced her
compensation based on her ability to earn wages in the position of office assistant/office clerk.
OWCP noted that the medical reports submitted by appellant did not show that she could not
participate in vocational rehabilitation efforts.
On December 11, 2017 appellant, through counsel, requested reconsideration of OWCP’s
January 4, 2017 decision. She submitted a December 16, 2016 report from Dr. Whang who noted
that appellant continued to complain of increased back and left lower extremity symptoms.
Dr. Whang indicated that appellant should avoid any activities which exacerbated her symptoms.
On February 1, 2017 he posited that it would be difficult for appellant to return to work in her
previous capacity at the employing establishment. On March 8, April 26, June 7, September 22,
2017, and January 19, 2018 reports, Dr. Whang indicated that he would not make any change in
appellant’s work status.9 Appellant also submitted computerized tomography (CT) and magnetic
7
Appellant submitted an April 3, 2012 report from Dr. Adetola who recommended that appellant use an
interferential stimulator device for her back.
8

Appellant also submitted a December 12, 2016 report of Gregory Kane, an attending physical therapist.

In his June 7, 2017 report, Dr. Whang noted, “[T]he patient states that she clearly would not be able to return to
work at this time because of her pain, so I will make no changes to her work status, pending recheck after her
injections.” In his January 19, 2018 report, he indicated that January 12, 2018 electromyogram (EMG) and nerve
conduction velocity (NCV) testing of appellant’s left lower extremity showed no radiculopathy. The record contains
a copy of the January 12, 2018 testing. In each of the examination reports submitted in connection with the
December 11, 2017 reconsideration request, Dr. Whang provided examination findings which were similar to those
contained in his previously submitted reports.
9

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resonance imaging (MRI) scans of the lumbosacral and cervical spines, dated between 2014 and
2017, which showed degenerative changes at multiple disc levels.
By decision dated April 5, 2018, OWCP denied modification of its January 4, 2017
decision. It again indicated that the medical reports submitted by appellant did not show that she
could not participate in vocational rehabilitation efforts.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened before it may terminate or modify compensation benefits.10 Section 8113(b) of FECA
provides that if an individual, without good cause, fails to apply for and undergo vocational
rehabilitation when so directed under section 8104 of FECA, OWCP, “after finding that in the
absence of the failure the wage-earning capacity of the individual would probably have substantially
increased, may reduce prospectively the monetary compensation of the individual in accordance with
what would probably have been his [or her] wage-earning capacity in the absence of the failure,”
until the individual in good faith complies with the direction of OWCP.11
Section 10.519 of Title 20 of the Code of Federal Regulations details the actions OWCP
will take when an employee without good cause fails or refuses to apply for, undergo, participate
in, or continue to participate in a vocational rehabilitation effort when so directed. Section
10.519(a) provides, in pertinent part:
“Where a suitable job has been identified, OWCP will reduce the employee’s future
monetary compensation based on the amount which would likely have been his or
her wage-earning capacity had he or she undergone vocational rehabilitation. [It]
will determine this amount in accordance with the job identified through the
vocational rehabilitation planning process, which includes meetings with the
OWCP nurse and the employer. The reduction will remain in effect until such time
as the employee acts in good faith to comply with the direction of OWCP.”12
ANALYSIS
The Board finds that OWCP properly reduced appellant’s compensation, effective May 29,
2016, under 5 U.S.C. § 8113(b) for failure, without good cause, to undergo vocational
rehabilitation efforts, as directed.
In October 2015, OWCP referred appellant for participation in an OWCP-sponsored
vocational rehabilitation program designed to return her to work. In December 2015, appellant’s
vocational rehabilitation counselor conducted a transferable work skills analysis to help determine
what types of jobs appellant could perform. Beginning in early-February 2016, the counselor
began to have difficulty in communicating with appellant through the established telephonic
10

Betty F. Wade, 37 ECAB 556, 565 (1986).

11

5 U.S.C. § 8113(b).

12

20 C.F.R. § 10.519(a).

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channels. Although appellant contacted the counselor by telephone on February 23, 2016, she
advised that she did not know whether she could participate in any vocational rehabilitation
training program recommended by the counselor due to her back condition. On April 4, 2016 she
explicitly advised the counselor that she could not attend any vocational rehabilitation training
program due to her back condition.
After OWCP issued a February 23, 2016 letter requesting that appellant provide “good
cause” for not participating in vocational rehabilitation efforts, appellant submitted medical
evidence which she later suggested was sufficient to establish that she was physically incapable of
participating in vocational rehabilitation efforts.13 The Board finds, however, that this medical
evidence does not clearly show that appellant’s physical condition prevented her from participating
in vocational rehabilitation efforts. For example, appellant submitted a February 18, 2016 report
from Dr. Whang, an attending physician, who indicated that appellant could return to light-duty
work. Moreover, on July 18, 2016 Dr. Whang posited that it was possible for appellant to return
to work with restrictions. In an August 10, 2016 letter, he noted that appellant was not cleared to
return to work until September 12, 2016. However, Dr. Whang did not provide any opinion that
appellant’s physical condition prevented her from participating in vocational rehabilitation efforts.
In later reports, dated between late-2016 and early-2018, he indicated that appellant could not
return to her date-of-injury nursing assistant position for the employing establishment, but these
reports do not contain any opinion on appellant’s ability to participate in vocational rehabilitation
efforts. Appellant failed to submit a rationalized medical report establishing that her physical
condition prevented her from participating in her vocational rehabilitation program.14
For these reasons, the Board finds that there is no evidence that appellant’s failure to fully
participate in vocational rehabilitation efforts, particularly in her failure to participate in any
vocational rehabilitation training program designed to aid in her return to the workforce, was based
on “good cause.”15
The Board further finds that the reduction of appellant’s compensation effective May 29,
2016 was properly based on her loss of wage-earning capacity had she continued to participate in
vocational rehabilitation efforts, as shown by her ability to earn wages as an office assistant/office
clerk. On February 1, 2016 appellant’s vocational rehabilitation counselor conducted a state labor
market survey and determined that appellant was capable of working on a full-time basis as an
office assistant/office clerk, a position which was reasonably available in appellant’s commuting
13

Appellant did not provide any statement to OWCP in response to OWCP’s February 23, 2016 letter requesting
that she provide “good cause” for not participating in vocational rehabilitation efforts. However, she suggested to her
vocational rehabilitation counselor that the medical evidence of record showed that she was physically incapable of
participating in vocational rehabilitation efforts.
14

See D.R., Docket No. 16-0528 (issued August 24, 2016) (finding that a report is of limited probative value on a
given medical issue if it does not contain adequate medical rationale). Appellant submitted a March 20, 2016 report
of Dr. Adetola, an attending physician, but this report does not contain any opinion on appellant’s ability to participate
in vocational rehabilitation efforts. She also submitted reports of Ms. Morocco and Mr. Kane, attending physical
therapists, which were dated between June 2015 and December 2016. However, these reports are of no probative
value on the relevant issue of this case because the report of a physical therapist does not constitute probative medical
evidence as a physical therapist is not a physician under FECA. See S.T., Docket No. 17-0913 (issued June 23, 2017).
15

See Michael D. Snay, 45 ECAB 403, 410-12 (1994).

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area with an average wage of $480.00 per week. According to the Department of Labor’s
Dictionary of Occupational Titles (DOT), the position was sedentary in nature and required
occasional lifting of up to 10 pounds.16
The Board notes that the medical evidence of record shows that appellant was physically
capable of working as an office assistant/office clerk. The physical requirements were within the
restrictions delineated in reports of Dr. Somogyi, an OWCP referral physician who provided the
most detailed assessment in the case record of appellant’s ability to work.17 Moreover, the Board
notes that OWCP properly relied on the expert opinion of appellant’s vocational rehabilitation
counselor that appellant would have been vocationally capable of working as an office
assistant/office clerk.18
For these reasons, OWCP properly reduced appellant’s compensation, effective May 29,
2016, under 5 U.S.C. § 8113(b) to reflect her loss of wage-earning capacity had she continued to
participate in vocational rehabilitation efforts.
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 OWCP properly reduced appellant’s compensation, effective May 29,
2016, under 5 U.S.C. § 8113(b) for failure, without good cause, to undergo vocational
rehabilitation efforts, as directed.

16

Sedentary work, according to the DOT, involves exerting up to 10 pounds of force occasionally and sitting most
of the time, but may involve walking or standing for brief periods of time. Occasionally performing an activity means
that the activity is performed up to 1/3 of the time during the workday. The position of office assistant/office clerk
involved entering information into a computer, preparing correspondence on a computer, and performing other clerical
duties such as photocopying and filing documents.
17
In an October 23, 2015 work capacity evaluation form (OWCP-5c), Dr. Somogyi indicated that appellant could
work eight hours per day with restrictions of lifting up to 40 pounds for four hours per day, twisting for two hours per
day, and bending/stooping for two hours per day.
18

See M.P., Docket No. 18-0094 (issued June 26, 2018) (finding that the vocational rehabilitation counselor is an
expert in the field of vocational rehabilitation and that OWCP may rely on his or her opinion in determining whether
the job is vocationally suitable and reasonably available).

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ORDER
IT IS HEREBY ORDERED THAT the April 5, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 2, 2019
Washington, DC

Patricia H. Fitzgerald, Deputy 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Coppell, TX, Employer
__________________________________________

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Appearances:
Stephen V. Hunt, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-0341
Issued: April 18, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JURISDICTION
On December 3, 2014 appellant, through counsel, filed a timely appeal from an
October 8, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $1,343.80 because OWCP failed to correctly
withhold premiums for the optional postretirement basic life insurance for the period
December 29, 2012 to October 19, 2013; (2) whether it properly denied waiver of recovery of the
overpayment; and (3) whether OWCP properly found that the overpayment should be recovered
by deducting $285.00 from appellant’s continuing compensation.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on November 6, 2011 appellant, then a 56-year-old maintenance
mechanic, strained his lower back while lifting mail at work. He stopped work on
November 7, 2011. OWCP accepted appellant’s claim for sprain of the lumbosacral joint or
ligament, and thoracic or lumbosacral neuritis or radiculitis. It paid disability compensation. On
January 25, 2012 appellant was placed on the periodic rolls.
In a letter dated June 6, 2013, the Office of Personnel Management (OPM), Retirement
Operations Center, informed OWCP that as a compensationer, appellant was eligible to continue
Federal Employees’ Group Life Insurance. The final base salary on which appellant’s Life
Insurance benefit was based was $58,601.00. The elections were listed as “no [r]eduction” for
postretirement optional basic life insurance and Code E5 for “Basic” and “Option C x 5 no
reduction”. The commencement date for these deductions was December 29, 2012.
In an audit conducted by OWCP on November 12, 2013 it was determined that
appropriate premiums for the postretirement basic life insurance elections, with zero percent
reduction, had not commenced until October 20, 2013. Appellant had, therefore, received an
overpayment in the amount of $1,343.80.
On November 20, 2013 OWCP issued a preliminary determination that appellant had
received an overpayment of compensation in the amount of $1,343.80 for the period
December 29, 2012 to October 19, 20132 because OWCP had not withheld appropriate
premiums for postretirement life insurance. It found that he was without fault in the creation of
the overpayment and requested that he provide financial information in order to determine his
eligibility for waiver of recovery of the overpayment.3 Appellant was advised that if he failed to
complete the Form OWCP-20 or to submit financial documents in support of waiver within 30
days, pursuant to 20 C.F.R. § 10.438, waiver would be denied. No additional information was
received from appellant.
By decision dated December 23, 2013, OWCP finalized its preliminary determination
and found that appellant had received an overpayment in the amount of $1,343.80. It denied
waiver of recovery of the overpayment because OWCP had received no financial documentation
or a completed overpayment recovery questionnaire upon which to base its decision. OWCP
determined that it would deduct $285.00 every 28 days from his continuing compensation
benefits.
On January 3, 2014 OWCP received appellant’s request for a prerecoupment hearing on
the issue of fault and overpayment. Appellant believed that the overpayment occurred through
2

In its November 20, 2013 preliminary determination, OWCP incorrectly identified October 29, 2013 as the date
of the end of the overpayment period instead of October 19, 2013. The correct date was used when calculating the
overpayment amount.
3

OWCP calculated the overpayment by taking the daily premium of $4.56, which should have been deducted,
and multiplying it by 15 days for the period December 29, 2012 to January 12, 2013, which totaled $68.40. It then
took the 28-day premium amount of $127.54 and multiplied it by 10 months for the period January 13 to
October 19, 2013, which totaled $1,275.40, for a total in overpayment of $1,343.80.

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no fault of his own and requested a waiver. He contended that he was never informed or notified
that he was responsible for paying any increased premiums from his OWCP income.
In a completed overpayment recovery questionnaire form, appellant provided his income,
expenses, assets, and liabilities.
Appellant submitted a form dated January 17, 2014 requesting that any postretirement
optional life insurance coverage be cancelled and in a second form dated January 17, 2014, he
requested that his life insurance be changed to a 75 percent reduction option (which is the option
with no cost to the compensationer).
On January 28, 2014 OWCP vacated the December 23, 2013 overpayment decision as
appellant’s request for a pre-recoupment hearing had been timely received prior to the
overpayment decision.
On July 11, 2014 a pre-recoupment hearing was held. Appellant did not disagree with
the existence or amount of the overpayment, but contended that he should be entitled to waiver
due to his financial situation. Counsel for appellant argued that appellant’s lack of income had
created a hardship, and that denial of waiver would be against equity and good conscience as
appellant’s wife had suffered from acute illnesses and health conditions that required his
disability income. Counsel stated that appellant’s condition both physically and emotionally
would diminish if he did not receive full disability income. He also contended that denial of
waiver would defeat the purpose of FECA because appellant needed all of his disability income
to meet ordinary and necessary expenses.
OWCP’s hearing representative noted that in his overpayment recovery questionnaire
appellant had reported income of only $2,854.46 but his OWCP disability compensation was
$3,023.60. He also noted that, although appellant had submitted financial documents and bills,
there was insufficient evidence to support appellant’s expenses. The hearing representative
advised appellant that the record would be held open for a period of 30 days to submit an
updated Form OWCP-20 and documentation of income and expenses.
In a September 6, 2014 statement, counsel requested that appellant’s overpayment be
forgiven in its entirety because it occurred through no fault of appellant. He also requested that
monthly payments be no more than $53.80 in his effort to clear the account without additional
hardship.
In a decision dated October 7, 2014, the hearing representative finalized the preliminary
determination, finding that appellant had received an overpayment in the amount of $1,343.80
for the period December 29, 2012 to October 19, 2013. She further found that appellant was
without fault in the creation of the overpayment, but denied waiver of recovery of the
overpayment. The hearing representative found that although he had listed his financials, he had
failed to submit the required documentation to support his stated income and expenses as
requested. She determined that OWCP would deduct $285.00 every 28 days from his continuing
compensation benefits.

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LEGAL PRECEDENT -- ISSUE 1
Under the Federal Employees’ Group Life Insurance program, most civilian employees
of the Federal Government are eligible to participate in basic life insurance and one or more of
the options.4 The coverage for basic life insurance is effective unless waived,5 and premiums for
basic and optional life coverage are withheld from the employee’s pay.6 Upon retirement or
upon separation from the employing establishment or being placed on the periodic FECA
compensation rolls, an employee may choose to continue basic and optional life insurance
coverage, in which case the schedule of deductions made will be used to withhold premiums
from his or her annuity or compensation payments.7 Basic insurance coverage shall be continued
without cost to an employee who retired or began receiving compensation on or before
December 31, 1989,8 however, the employee is responsible for payment of premiums for
optional life insurance coverage which is accomplished by authorizing withholdings from his
compensation.9
A 1980 amendment of 5 U.S.C. § 8706(b)(2) provided that an employee receiving
compensation under FECA could elect continuous withholdings from his or her compensation,
so that the life insurance coverage could be continued without reduction. 5 C.F.R. § 870.701
(December 5, 1980) provided that an eligible employee had the option of choosing no life
insurance; Option A - basic coverage (at no additional cost) subject to continuous withholdings
from compensation payments that would be reduced by two percent a month after age 65 with a
maximum reduction of 75 percent; Option B - basic coverage (at an additional premium) subject
to continuous withholdings from compensation payments that would be reduced by one percent a
month after age 65 with a maximum reduction of 50 percent; or Option C - basic coverage
subject to continuous withholdings from compensation payments with no reductions after age 65
(at a greater premium).10
Each employee must elect or waive Option A, Option B, and Option C coverage, in a
manner designated by OPM, within 60 days after becoming eligible unless, during earlier
employment, he or she filed an election or waiver that remains in effect.11 Any employee who
4

5 U.S.C. § 8702(a).

5

5 U.S.C. § 8702(b).

6

5 U.S.C. § 8707.

7

5 U.S.C. § 8706.

8

5 U.S.C. § 8707(b)(2).

9

5 U.S.C. § 8706(b)(3)(B). See Edward J. Shea, 43 ECAB 1022 (1992) (the Board found that claimant received
an overpayment of compensation where he elected postretirement basic life insurance with no reduction and no
premiums had been deducted from his compensation from January 3, 1988 to May 6, 1989). See also Glen B. Cox,
42 ECAB 703 (1991) (the Board found that an overpayment was created due to no deduction of premiums for
optional life insurance for periods from July 1983 through November 1989).
10

See James J. Conway, Docket No. 04-2047 (issued May 20, 2005).

11

5 C.F.R. 870.504 (a)(1)

4

does not file a Life Insurance Election with his or her employing office, in a manner designated
by OPM, specifically electing any type of Optional insurance, is considered to have waived it
and does not have that type of Optional insurance.12 When an under-withholding of life
insurance premiums occurs, the entire amount is deemed an overpayment of compensation
because the Office must pay the full premium to the OPM upon discovery of the error.13
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.14
When an overpayment has been made to an individual because of an error of fact or law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which the individual is entitled.15
ANALYSIS -- ISSUE 1
The Board finds that the case is not in posture for decision as OWCP has not properly
determined that an overpayment of $1,343.80 was created from December 29, 2012 to
October 19, 2013.
OPM informed OWCP that appellant had elected, as a compensationer, to receive
optional postretirement basic life insurance benefits, at no reduction, commencing
December 29, 2012. The record reflects that OWCP failed to make any postretirement insurance
premium deductions from December 29, 2012 to October 19, 2013.
The Board finds, however, that the record does not provide any evidence that appellant
signed a document electing the optional no reduction postretirement basic life insurance benefit.
This information was provided to OWCP by OPM in a letter, but the record does not contain any
supporting documentation. While the employing establishment completed a CA-7 form on
January 17, 2012 indicating that appellant had both basic and optional life insurance, Class E-5,
the record does not include the form signed by appellant, electing the no reduction option for
postretirement basic life insurance. The Board has previously found that OWCP must document
whether and when appellant elected life insurance coverage after retirement.16
In the case N.J.,17 the Board remanded the case to OWCP for further development
because the evidence was unclear as to why postretirement insurance deduction were made as of
a certain date. Similarly, in this case the evidence of record fails to establish the basis for the
optional postretirement basic life insurance premiums at the no reduction option, as the record
does not contain a signed election form. It is unclear from the record why OPM informed
12

Id. At 504(b).

13

5 USC § 8707(d); see also Keith H. Mapes, 56 ECAB 130 (2004); James Lloyd Otte, 48 ECAB 334 (1997).

14

5 U.S.C. § 8102(a).

15

Id. at § 8129(a).

16

J.L., Docket No. 14-1094 (issued June 25, 2015); see also R.W., Docket No. 11-1303 (January 9, 2012).

17

Docket No. 13-2164 (April 18, 2014).

5

OWCP that premiums for postretirement basic life insurance at no reduction should have been
deducted as of December 29, 2012.
Appellant would be responsible for the additional cost associated with his election of the
optional postretirement basic life insurance. However, as OWCP has not factually established
that appellant elected the optional coverage, there can be no finding of overpayment. As the fact
and amount of overpayment are not clearly established by the record, case will be remanded to
OWCP. On remand, OWCP should obtain from OPM the executed election form completed by
appellant prior to determining whether appellant received an overpayment of compensation.
After such further development as OWCP deems necessary, it should issue a de novo decision.18
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the October 8, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and this case is remanded to OWCP for further
proceedings consistent with this opinion.
Issued: April 18, 2016
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

18

As the issues of fact and amount of overpayment are to be further developed upon return of the case record, the
issues of waiver and recovery of the overpayment are not in posture for decision at this time. See S.G., Docket No.
14-769 (issued December 9, 2014); see also J.H., Docket No. 07-656 (issued July 26, 2007).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.S., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Los Angeles, CA,
Employer
__________________________________________

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

Docket No. 18-0718
Issued: October 26, 2018

Case Submitted on the Record

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

JURISDICTION
On February 16, 2018 appellant filed a timely appeal from a December 19, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). The most recent merit
decision was a Board decision dated June 8, 2017, which became final after 30 days of issuance
and is not subject to further review.1 As there was no merit decision by OWCP within 180 days
of the filing of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
1

20 C.F.R. § 501.6(d); see T.B., Docket No. 15-0001 (issued July 1, 2015); C.M., Docket No. 15-471 (issued
April 27, 2015); D.A., Docket No. 08-1217 (issued October 6, 2008).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows.
On October 27, 2014 appellant, then a 42-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that he sustained a back condition as a result of heavy lifting
while loading and unloading trucks at work.4 He first became aware of his claimed condition and
its relationship to his federal employment on July 12, 2010. On the reverse side of the claim form,
appellant’s supervisor contended that the claim appeared to be untimely because appellant was no
longer on the employment rolls as of July 13, 2013.5
By decision dated January 26, 2015, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence of record was insufficient to establish that he sustained a back
injury causally related to the accepted work event(s). This decision was affirmed on July 28, 2015
by an OWCP hearing representative.
On August 6, 2015 appellant requested reconsideration and submitted additional factual
evidence.
By decision dated November 2, 2015, OWCP reviewed the merits of appellant’s claim,
including the new evidence he submitted, but denied modification, finding that the evidence
submitted was of insufficient probative value to modify the July 28, 2015 decision.
Appellant appealed to the Board on February 17, 2016. By decision dated June 3, 2016,
the Board affirmed the November 2, 2015 OWCP decision.6 The Board found that appellant had
not met his burden of proof to establish an injury causally related to the accepted factors of his
federal employment as he submitted insufficient medical evidence addressing causal relationship.7

3

Docket No. 16-0683 (issued June 3, 2016). Order Dismissing Appeal, Docket No. 16-0683 (issued July 22, 2016).
Docket No. 17-0590 (issued June 8, 2017).
4

The record contains a second Form CA-2, received by OWCP on October 27, 2014, also claiming a back injury
due to loading and unloading trucks. Appellant reported that he first became aware of the claimed condition and its
relationship to his federal employment on May 24, 2010.
5

Appellant’s actual date of last employment was July 13, 2012.

6

Docket No. 16-0683 (issued June 3, 2016).

7

After appellant filed an appeal to the Board on February 17, 2016 regarding the November 2, 2015 OWCP denial
decision, he appealed a February 24, 2016 OWCP nonmerit decision, denying further merit review of the claim
pursuant to 5 U.S.C. § 8128(a), to the Board on March 15, 2016. In an order dated July 22, 2016, the Board dismissed
the appeal. Order Dismissing Appeal, Docket No. 16-085 (issued July 22, 2016). The Board rendered the
February 24, 2016 decision null and void as it had jurisdiction over the case at the time the decision was issued by
OWCP.

2

Appellant requested reconsideration on June 17, 2016 and submitted additional medical
evidence.
In an April 30, 2016 progress note, Dr. Nareshkumar B. Arulampalam, a Board-certified
psychiatrist, related a history that appellant was fired from his job four years ago and that he had
intermittent depression and anxiety. He indicated that appellant was seen for anxiety and sleep
problems. Dr. Arulampalam performed an examination and diagnosed chronic anxiety disorder,
occupational problems or work circumstances, chronic depression, unspecified, and chronic
lumbar spondylosis. Regarding chronic low back pain, he indicated that the condition had
continued from August 3, 2010 to the present. Dr. Arulampalam related that appellant had a
recurrent muscle injury due to lifting at work while loading and unloading trucks.
In a November 23, 2015 treatment note, Dr. Patrick Casey, a Board-certified psychiatrist,
reported a history that appellant had been unfairly fired from his job four years earlier and that he
had intermittent depression and anxiety since that time.
By decision dated September 9, 2016, OWCP again reviewed the merits of appellant’s
claim, including the new evidence submitted by appellant, but denied modification of its prior
decision, finding that the evidence submitted was of insufficient probative value to modify the
November 2, 2015 decision.
On September 26, 2016 appellant again requested reconsideration and submitted additional
factual and medical evidence.
On August 3, 2010 Dr. Darren K. Shimabukuro, Board-certified in internal medicine,
reported that appellant had early lumbar degenerative disc disease with recurrent muscular back
injury due to his work activities.
In a May 5, 2016 report, Dr. Marc Montecillo, a Board-certified internist, related that
appellant was seen for low back pain. He diagnosed lumbar degenerative disc disease, with initial
onset of back pain in 2009.
In an October 17, 2016 report, Dr. Val Valco, a Board-certified internist, related that
appellant had a history of chronic back pain which was now controlled. He also noted that
appellant related that he was able to perform his employment duties, including lifting 70-pound
boxes 5 days per week for up to 8 hours per day.
By decision dated December 22, 2016, OWCP reviewed the merits of the claim, but denied
modification of the September 9, 2016 decision. It found that the medical evidence submitted was
insufficient to establish a causal relationship between appellant’s diagnosed back condition and
the accepted factors of his federal employment.
On January 3, 2017 appellant requested reconsideration and again submitted additional
factual and medical evidence.
By decision dated January 10, 2017, OWCP denied appellant’s request for reconsideration
of the merits of his claim pursuant to 5 U.S.C. § 8128(a). It found that he had not demonstrated

3

that it had erroneously applied or interpreted a point of law and had not submitted relevant and
pertinent new evidence.
On January 23, 2017 appellant appealed OWCP’s September 9 and December 22, 2016
decisions to the Board.8 By decision dated June 8, 2017, the Board affirmed those decisions, again
finding that appellant had not met his burden of proof to establish a back injury causally related to
the accepted factors of his federal employment as he submitted insufficient medical evidence to
establish causal relationship.9 The Board determined that Dr. Arulampalam’s April 30, 2016
report and Dr. Casey’s November 23, 2015 treatment note were of limited probative value on the
issue of causal relationship and were thus insufficient to meet appellant’s burden of proof. The
Board noted that Dr. Arulampalam and Dr. Casey were psychiatrists and did not treat appellant for
a back condition. In addition, the Board noted that Dr. Arulampalam provided only a brief
reference to a history of chronic back pain due to lifting at work, without providing additional
detail or explanation. Further, the Board noted that Dr. Casey did not discuss an employmentrelated back condition.
On October 31, 2017 by OWCP, appellant requested reconsideration and submitted
additional evidence. In a statement dated July 12, 2010, he contended that the reports of
Dr. Arulampalam and Dr. Casey should be considered probative medical evidence as psychiatrists
are considered to be physicians as defined under FECA.
By decision dated December 19, 2017, OWCP again denied further merit review of
appellant’s claim under 5 U.S.C. § 8128(a). It found that his request for reconsideration neither
raised substantive legal questions, nor included new and relevant evidence.
LEGAL PRECEDENT
Section 8128 of FECA vests OWCP with a discretionary authority to determine whether it
will review an award for or against compensation, either under its own authority or on application
by a claimant.10 Section 10.608(b) of OWCP’s regulations provide that a timely request for
reconsideration may be granted if OWCP determines that the claimant has presented evidence
and/or argument that meet at least one of the standards described in section 10.606(b)(3).11 This
section provides that the application for reconsideration must be submitted in writing and set forth
arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.12 Section 10.608(b) provides that, when a request for reconsideration is

8

Appellant did not appeal the January 10, 2017 decision to the Board.

9

Docket No. 17-0590 (issued June 8, 2017).

10

5 U.S.C. § 8128(a).

11

20 C.F.R. § 10.608(a).

12

Id. at § 10.606(b)(3).

4

timely, but fails to meet at least one of these three requirements, OWCP will deny the application
for reconsideration without reopening the case for a review on the merits.13
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
In support of his request for reconsideration, appellant submitted a statement dated July 12,
2010 in which he contended that the reports of Dr. Arulampalam and Dr. Casey should be
considered probative medical evidence as psychiatrists are considered to be physicians as defined
under FECA. However, as noted, the Board does not have jurisdiction over the merits of the case.
Moreover, the Board previously addressed the sufficiency of the reports of Dr. Arulampalam and
Dr. Casey in its June 8, 2017 decision and found that this evidence was of limited probative value
on the issue of causal relationship and insufficient to establish appellant’s burden of proof. The
Board reasoned that, while the physicians were psychiatrists, they did not treat appellant for a back
condition. The Board found that Dr. Arulampalam provided only a brief reference to a history of
chronic back pain due to lifting at work, without providing additional detail or explanation. The
Board further found that Dr. Casey did not discuss an employment-related back condition. The
Board’s prior findings are res judicata absent further merit review by OWCP under section 8128
of FECA.14 For the reasons provided, appellant’s July 12, 2010 statement is insufficient to warrant
reopening his claim for further merit review.
The Board, therefore, finds that in his October 31, 2017 request for reconsideration,
appellant did not show that OWCP erroneously applied or interpreted a specific point of law, or
advance a new and relevant legal argument not previously considered. Thus, appellant is not
entitled to a review of the merits of his claim based on the first and second above-noted
requirements under section 10.606(b)(3).
The Board further finds that appellant did not submit relevant or pertinent new evidence
not previously considered. The underlying issue in this case is whether appellant submitted
sufficient medical evidence establishing a back condition causally related to the accepted
employment factors. Appellant did not submit any medical evidence in support of his request for
reconsideration. The Board accordingly finds that appellant has not met any of the requirements
of 20 C.F.R. § 10.606(b)(3) in his October 31, 2017 request for reconsideration. Pursuant to 20
C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

13

Id. at § 10.608(b).

14

See F.E., Docket No. 17-0503 (issued July 21, 2017); H.G., Docket No. 16-1191 (issued November 25, 2016).

5

ORDER
IT IS HEREBY ORDERED THAT the December 19, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 26, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.D., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Las Vegas, NV, Employer
__________________________________________

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

Docket No. 16-0936
Issued: April 20, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 3, 2016 appellant filed a timely appeal from a February 4, 2016 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
ISSUE
The issue is whether OWCP properly reduced appellant’s compensation to zero under
5 U.S.C. § 8113(b) and 20 C.F.R. § 10.519 for failing to cooperate with the early stages of
vocational rehabilitation efforts.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that the record includes evidence received after OWCP issued its February 4, 2016 decision.
On appeal, the Board is limited to reviewing the evidence that was before OWCP when it issued its final decision.
20 C.F.R. § 501.2(c)(1). Therefore, the Board is precluded from reviewing this evidence on appeal.

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances of the case
as set forth in the Board’s September 19, 2011 decision are incorporated herein by reference.
The relevant facts follow.
Appellant, a 56-year-old transportation security officer, was injured in the performance of
duty on December 5, 2009 when she fell from a 20-inch high platform. Her current accepted
conditions include cervical, thoracic, and lumbar sprains, chest wall contusion, permanent
aggravation of cervical intervertebral disc disorder with myelopathy, and permanent aggravation
of lumbar intervertebral disc degeneration. When the case was last on appeal, OWCP had
terminated appellant’s wage-loss compensation and medical benefits effective May 12, 2010.
By decision dated September 19, 2011, the Board reversed OWCP’s termination of
compensation benefits because it had not met its burden of proof. On October 4, 2011 OWCP
advised appellant that her claim was reopened for medical treatment.4 Appellant subsequently
received wage-loss compensation retroactive to February 11, 2010, and thereafter placed her on
the periodic compensation rolls effective April 8, 2012.5
In February 2015, OWCP referred appellant for vocational rehabilitation services based
on the October 8, 2014 findings of her treating physician, Dr. Christopher A. Fisher, a specialist
in physical medicine and rehabilitation. At the time, Dr. Fisher diagnosed mechanical low back
pain, cervical and lumbar muscular and myofascial pain, and ongoing cervical and lumbar pain
likely due to discogenic etiology at C4-5, C5-6, and L5-S1. He advised that appellant had
reached maximum medical improvement (MMI). Dr. Fisher also recommended a functional
capacity evaluation (FCE), and indicated that appellant could work in a light-duty status pending
the FCE results.
In a February 10, 2015 letter to appellant, the rehabilitation counselor advised that an
FCE was scheduled for March 2, 2015.
The rehabilitation counselor interviewed appellant on March 2, 2015 just prior to the
scheduled FCE. She reviewed appellant’s employment history, conducted a transferrable skills
analysis, and tentatively scheduled vocational testing for later that month.
On March 2, 2015 an FCE was conducted by Doug Ellis, a physical therapist. Mr. Ellis
found that appellant had participated on only a limited basis during the FCE and reported
inconsistencies in her presentation, as well as self-limiting pain behaviors. He observed signs of
symptom magnification and the probability of a less than maximum effort. Appellant
3

Docket No. 10-1998 (issued September 19, 2011).

4

At the time, the only accepted conditions were cervical, thoracic, and lumbar sprains, and chest wall contusion.
In November 2012, OWCP expanded the claim to include permanent aggravation of cervical intervertebral disc
disorder with myelopathy and permanent aggravation of lumbar intervertebral disc degeneration.
5

The employing establishment had removed appellant from service effective September 20, 2010 because it was
unable to accommodate her injury-related work restrictions.

2

demonstrated inconsistencies, such as giveaway strength of her lower extremities, as well as
variations in the range of motion of her hips and shoulders when comparing that measured and
observed. She discontinued with various activities due to reports of increased symptoms and sat
for a brief period of time, but then continued to perform additional activities demonstrating no
changes in her previously observed pain behaviors or movement patterns. Mr. Ellis concluded
that the results of the FCE were, therefore, determined to be unreliable and invalid.
In a March 11, 2015 letter, OWCP advised appellant that the March 2, 2015 FCE results
were considered invalid due to multiple inconsistencies in her performance during the testing. It
also noted that she had not given maximum effort, and there was also evidence of symptom
magnification. Additionally, OWCP noted that pursuant to 5 U.S.C. § 8113(b), if an individual
without good cause fails to apply for and undergo vocational rehabilitation when so directed, and
OWCP finds that in the absence of the failure the individual’s wage-earning capacity would
probably have substantially increased, it may reduce prospectively the compensation based on
what probably would have been the individual’s wage-earning capacity had she not failed to
apply for and undergo vocational rehabilitation. It further stated:
“Also, [s]ection 10.519 of Title 20 of the Code of Federal Regulations provide
that if an individual without good cause fails or refuses to participate in the
essential preparatory efforts as described above, OWCP will assume, in the
absence of evidence to the contrary, that the vocational rehabilitation effort would
have resulted in a return to work with no loss of wage-earning capacity, and
compensation will be reduced accordingly. In effect, this will result in a
reduction of compensation to zero.”
OWCP afforded appellant 30 days to contact the vocational rehabilitation counselor to
make a good effort to participate in the rehabilitation effort or to provide good reasons for
noncompliance.
In a report dated March 25, 2015, Dr. Fisher noted that appellant continued to have a
significant degree of muscular and myofascial pain, as well as discogenic pain symptoms. He
reiterated that she had reached MMI and recommended a repeat FCE given that the first was
invalid.
On March 30, 2015 Mr. Ellis conducted a repeat FCE. Once again, he found the results
unreliable and invalid due to continuing signs of symptom magnification and self-limiting pain
behavior. Mr. Ellis noted that prior to the start of the evaluation he reviewed the prior testing
and discussed specific examples of inconsistencies. Appellant was encouraged to ask questions
and participate at her best level. Mr. Ellis instructed her to report increased symptoms or to stop
any test if she could not complete the activity, if her pain increased beyond a level where she
could not continue, or if she was experiencing any other difficulties, such as fatigue or shortness
of breath. He found that appellant produced positive Waddell’s signs in the four major
categories in which she was able to participate. Mr. Ellis opined that this was a positive test for
symptom magnification. Appellant declined to lie on the treatment table and was unable to
produce any grip strength using a hand dynamometer with her left upper extremity. The grip
strength produced with her right hand with dynamometer testing was also significantly low.
Appellant produced a coefficient of variation which exceeded 15 percent with one grip strength

3

test performed using her right upper extremity, with both lower extremities during the knee
extension strength testing, and with the static pull and push testing. Mr. Ellis opined that these
were inconsistencies. Appellant produced giveaway strength of both lower extremities during
the manual muscle testing procedures, but there was no observed functional weakness or giving
away of either lower extremity with standing following completion of the evaluation and turning
to transfer into her car. She did not require the use of any support other than the evaluator and
her husband being present for safety considerations. Mr. Ellis found that appellant demonstrated
a discrepancy when comparing the measured and observed range of motion of her left elbow
with flexion. In the Oswestry Evaluation, appellant reported that she was only able to tolerate
sitting for 10 minutes, but Mr. Ellis reported that she sat on her front-wheeled walker while
completing the required paperwork and waiting for the evaluation to be performed for 40
minutes. Mr. Ellis noted that appellant exhibited an episode during the functional testing where
she demonstrated a controlled type of fall. Appellant did not report any increase in her
symptoms following this episode and demonstrated no difficulty with standing on either lower
extremity while turning to transfer into her car with standby assistance. Mr. Ellis concluded that
the results of the FCE were, therefore, determined to be unreliable and invalid.
On April 3, 2015 appellant underwent vocational testing.
On an April 10, 2015 Rehabilitation Action Report (Form OWCP-44), the rehabilitation
counselor advised that the March 30, 2015 FCE was determined to be invalid as there were
inconsistencies in appellant’s performance, as well as evidence of symptom magnification and
self-limiting pain behavior. The rehabilitation counselor noted that there was an episode during
the evaluation where appellant demonstrated a controlled type of fall and the FCE report
indicated that she was supported by an evaluator and a technician who were present.
Based on appellant’s performance on the March 2015 FCEs, OWCP suspended its
vocational rehabilitation efforts on April 13, 2015.
By decision dated April 15, 2015, OWCP reduced appellant’s compensation to zero
under 5 U.S.C. § 8113(b) as she had failed to participate in vocational rehabilitation efforts.
On April 21, 2015 appellant requested an oral hearing before a representative of the
Branch of Hearings and Review, which was held on November 19, 2015. She claimed that she
fell about half way through the test and Mr. Ellis would not allow her to continue the March 30,
2015 FCE.
In an April 22, 2015 report, Dr. Fisher noted that appellant had a repeat FCE that was
deemed invalid because of her lack of full effort; however, she reported that she did put forth
effort and was told by the evaluator to stop the examination. OWCP received additional followup reports from Dr. Fisher covering the period May 20, 2015 through January 20, 2016 wherein
he reiterated appellant’s assertion that she had put forth full effort and had been told by the
evaluator to stop the examination.

4

By decision dated February 4, 2016, OWCP’s hearing representative affirmed the
April 15, 2015 decision.6
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.7 Section 8113(b) of FECA provides that
if an individual, without good cause, fails to apply for and undergo vocational rehabilitation
when so directed under section 8104 of FECA, OWCP, after finding that in the absence of the
failure the wage-earning capacity of the individual would probably have substantially increased,
may reduce prospectively the monetary compensation of the individual in accordance with what
would probably have been his or her wage-earning capacity in the absence of the failure, until
the individual in good faith complies with the direction of OWCP.8
Section 10.519 of OWCP’s regulations provides that if an employee without good cause
fails or refused to apply for, undergo, participate in, or continue to participate in a vocational
rehabilitation effort when so directed, OWCP will act as follows:
“(b) Where a suitable job has not been identified, because the failure or refusal
occurred in the early but necessary stages of a vocational rehabilitation effort (that
is, meeting with OWCP’s nurses, interviews, testing, counseling, functional
capacity evaluations, and work evaluations), OWCP cannot determine what
would have been the employee’s wage-earning capacity.
“(c) Under the circumstances identified in paragraph (b) of this section, in the
absence of evidence to the contrary, OWCP will assume that the vocational
rehabilitation effort would have resulted in a return to work with no loss of wageearning capacity, and OWCP will reduce the employee’s monetary compensation
accordingly (that is, to zero). This reduction will remain in effect until such time
as the employee acts in good faith to comply with the direction of OWCP.”9
OWCP procedures provide that specific instances of noncooperation during the plan
development stage include: failure to appear for the initial interview; failure to attend meetings
with the rehabilitation counselor; failure to undergo an FCE, including failure to put forth
optimum effort during the FCE; failure to undergo vocational testing and other work evaluations,

6

By decision dated April 22, 2015, OWCP also denied appellant’s claim for a schedule award. A different
hearing representative affirmed the schedule award decision on a February 9, 2016 decision, which appellant has
separately appealed under Docket No. 16-0761.
7

See S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

8

5 U.S.C. § 8113(b).

9

20 C.F.R. § 10.519.

5

including lack of response or inappropriate response to directions during testing; and failure to
respond to the rehabilitation counselor’s telephone calls or written notices.10
ANALYSIS
The Board finds that OWCP improperly reduced appellant’s compensation to zero for
failing, without good cause, to participate in the vocational rehabilitation efforts.
OWCP accepted that appellant sustained cervical, thoracic, and lumbar sprains, chest
wall contusion, permanent aggravation of cervical intervertebral disc disorder with myelopathy,
and permanent aggravation of lumbar intervertebral disc degeneration on December 5, 2009
when she fell from a 20-inch high platform at work. Appellant received wage-loss compensation
effective February 11, 2010 and was placed on the periodic compensation rolls effective
April 8, 2012.
The record reflects that, on February 4, 2015, OWCP referred appellant for vocational
rehabilitation services to develop a vocational plan to assist her in returning to gainful
employment within her medical limitations. As part of the vocational rehabilitation process
appellant was directed to attend and fully participate in an FCE on March 2, 2015. Although she
attended the examination, the evaluator’s report reflected that she provided inconsistent
responses and failed to demonstrate maximum effort. The evaluator concluded that the
evaluation was unreliable and invalid.
Appellant was notified that her failure to cooperate without good cause was reason to
reduce her compensation benefits. She was directed to attend and fully participate in a second
FCE scheduled for March 30, 2015. The second FCE was scheduled with the same physical
therapist who had conducted the first FCE and who had found her effort was less than maximum.
Appellant attended the evaluation, but the evaluator, Mr. Ellis, again reported that he was unable
to accurately assess her full work capacity due to inconsistencies in her test responses and
probable less than maximum effort. The evaluator reported that the second FCE was also
unreliable and invalid.
The Board finds, however, that the FCE report of March 30, 2015 is of limited probative
value because it is speculative and inconsistent. Mr. Ellis specifically noted that he had
discussed the results of the prior test with appellant prior to the March 30, 2015 examination and
advised her that she could stop any test if she could not complete the activity or her pain
increased beyond a level where she could not continue. He then found that appellant produced
positive Waddell’s signs in the four major categories in which she was able to participate, but
opined that this was a positive test for symptom magnification. Mr. Ellis indicated that appellant
did not require the use of any support other than himself, a technician, and her husband, who was
only present for safety considerations, but then later stated that she had a front-wheeled walker,
which she was using as a seat for the duration of the 40-minute evaluation. Based on this, he
concluded that there was a probability that appellant’s test results were invalid. The Board notes
that Mr. Ellis offered no opinion regarding appellant’s ability to perform work activities given
10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Vocational Rehabilitation Services, Chapter 2.813.17(b)
(February 2011); see Sam S. Wright, 56 ECAB 358 (2005).

6

the tests she was able to perform which would have provided guidance to the vocational
rehabilitation counselor of her actual work ability for certain tasks. The Board finds that the
March 30, 2015 FCE report is internally inconsistent and speculative in nature. It is therefore of
limited probative value.11
The Board further finds that the March 30, 2015 FCE is of diminished probative value
regarding appellant’s ability to perform employment duties because it was scheduled with the
same physical therapist, Mr. Ellis, who had conducted the previous FCE. Although OWCP
procedures do not require that a second FCE be conducted with one not already affiliated with
the case, in such circumstances the physical therapist could have a predisposition for a particular
result. The Board notes that the second FCE is virtually identical to the first one in both format
and results, internally inconsistent, subject to predisposition, and speculative in nature. As such,
the Board finds that it, too, is of limited probative value. To avoid the appearance of a
predisposition for any result and to obtain a fair and impartial reporting, the second FCE should
have been scheduled with an independent physical therapist or other medical professional not
already affiliated with the case to perform the second FCE.12
The Board therefore finds that OWCP improperly reduced appellant’s compensation
benefits to zero, for failure to cooperate in vocational rehabilitation, based on a March 30, 2015
FCE report which was of limited probative value without scheduling a second, independent FCE.
CONCLUSION
The Board finds that OWCP improperly reduced appellant’s compensation to zero
pursuant to 5 U.S.C. § 8113(b) and 20 C.F.R. § 10.519 for failing to cooperate with vocational
rehabilitation efforts.

11

See Y.C., Docket No. 15-1442 (issued October 3, 2016).

12

See E.S., Docket No. 12-467 (issued August 8, 2012) (where a second, independent physical therapist was
scheduled to perform an FCE after an initial physical therapist reported that appellant provided inconsistent
responses and failed to otherwise comply with the FCE testing), see also id.

7

ORDER
IT IS HEREBY ORDERED THAT the February 4, 2016 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: April 20, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Beckley, WV, Employer
__________________________________________

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

Docket No. 17-1819
Issued: March 14, 2018

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 24, 2017 appellant filed a timely appeal from a July 25, 2017 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 claim.2
ISSUE
The issue is whether appellant met her burden of proof to establish an injury causally
related to the accepted May 31, 2017 employment incident.

1

5 U.S.C. § 8101 et seq.

2
The record provided to the Board includes evidence received after OWCP issued its July 25, 2017 decision. The
Board’s review of a case is limited to the evidence that was before OWCP at the time of its final decision. 20 C.F.R.
§ 501.2(c)(1). Therefore, the Board is precluded from considering this evidence for the first time on appeal. Id.

FACTUAL HISTORY
On June 3, 2017 appellant, a 31-year-old nursing assistant, filed a traumatic injury claim
(Form CA-1) alleging that she sustained lower back and left lower extremity conditions that
arose in the performance of duty on May 31, 2017. She indicated that she was assisting a patient
back into bed when he became combative, “kicking and pulling.” Appellant experienced lower
back pain that radiated down her left leg. She also reported a knot in her left calf. Appellant
stopped work on June 4, 2017.
OWCP received unsigned chiropractic treatment records covering the period June 2
to 9, 2017.
In a June 9, 2017 attending physician’s report (Form CA-17), Dr. Edward G.
McCormick, a chiropractor, indicated that on May 31, 2017 appellant was lifting a combative
patient who kicked her several times. He diagnosed employment-related “subluxation L4-5, L5S1, pelvis, sacrum.”3 Dr. McCormick indicated that appellant was totally disabled from June 4
through July 4, 2017. He also noted that he was awaiting authorization for a lumbar magnetic
resonance imaging (MRI) scan. In a June 9, 2017 duty status report (Form CA-17),
Dr. McCormick advised that appellant was unable to resume work.
In a letter dated June 23, 2017, OWCP informed appellant of the evidence needed to
establish her claim and she was provided a development questionnaire. Appellant was informed
that the additional evidence should include a narrative report from a physician with a medical
explanation as to how the alleged work incident caused or aggravated the claimed medical
conditions. OWCP specifically informed her that a chiropractor was only considered a physician
under FECA if a spinal subluxation was demonstrated by x-ray to exist. It also requested that
appellant provide additional details regarding the alleged May 31, 2017 employment incident.
Appellant submitted her completed responses to the development questionnaire on
July 3, 2017. In the response, she indicated that when she entered the patient’s room she noticed
his arms and legs were hanging over the bed rails and he was almost ready to fall on his face.
When appellant began to put his arms and legs back onto the bed, the patient started pulling her
upper body down and kicking her in the stomach. She then turned away to protect herself, but he
continued pulling her down and kicking. Appellant called for help and two coworkers came in
and finished pulling the patient up onto the bed. OWCP also received witness statements from
two of appellant’s coworkers who described the May 31, 2017 incident involving a patient who
became aggressive with appellant when she attempted to move him.
An unsigned June 6, 2017 x-ray report of the lumbar spine from New River Chiropractic
and Wellness Center indicated left lateral curvature of lumbar spine, subluxation of sacroiliac
joint on the left, and subluxation of L3, L4, and L5. No fractures were noted.
Appellant submitted June 6, 2017 final x-ray reports from Dr. Robert B. Davis, a Boardcertified diagnostic radiologist.4 In a June 6, 2017 x-ray of the lumbar spine, Dr. Davis found no
3
Dr. McCormick placed a mark in the “Yes” box in response to question No. 8: “Do you believe the condition(s)
found was caused or aggravated by an employment activity” as previously described?
4

Dr. McCormick was the ordering physician.

2

acute fracture or dislocation and noted mild levoscoliotic curvature of the spine. He provided an
impression of levoscoliosis with no acute findings. In the June 6, 2017 x-ray of appellant’s
thoracic spine, he found no evidence of acute fracture or subluxation and provided an impression
of a normal examination.
In a July 10, 2017 duty status report (Form CA-17), Dr. Sulabha Chaganaboyana, a
family practitioner, released appellant to work with restrictions.
In a July 11, 2017 attending physician’s report, Dr. McCormick diagnosed subluxation at
L4-5, L5-S1, pelvis, and sacrum and he noted that he suspected a herniation. He indicated that
the conditions were caused or aggravated by the May 31, 2017 injury as the symptoms correlated
with the injury.
On July 11, 2017 appellant returned to work in a limited-duty capacity.
In a July 19, 2017 attending physician’s report (Form CA-20), Christina Brash, a nurse
practitioner, noted the history of the injury on May 31, 2017. She opined that the diagnosed
conditions of lumbar sprain, thoracic pain, and low back pain with left sciatica were caused or
aggravated by the work activity as appellant did not have pain until after the employment
incident. A July 19, 2017 duty status report (Form CA-17) from Ms. Brash indicated that
appellant could work with restrictions. A July 19, 2017 school/work excuse from Ms. Brash was
also provided.
By decision dated July 25, 2017, OWCP denied appellant’s claim, finding that she had
failed to establish the medical component of fact of injury.
LEGAL PRECEDENT
A claimant seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including that an injury was sustained in the performance of duty as alleged and that
any specific condition or disability claimed is causally related to the employment injury.6
To determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP begins with an analysis of whether fact of injury has been established. Generally,
fact of injury consists of two components that must be considered in conjunction with one
another. The first component is whether the employee actually experienced the employment
incident that allegedly occurred.7 The second component is whether the employment incident
caused a personal injury.8 An employee may establish that an injury occurred in the performance

5

Supra note 2.

6

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

7

Elaine Pendleton, 40 ECAB 1143 (1989).

8

John J. Carlone, 41 ECAB 354 (1989).

3

of duty as alleged, but fail to establish that the disability or specific condition for which
compensation is being claimed is causally related to the injury.9
Causal relationship is a medical question that generally requires rationalized medical
opinion evidence to resolve the issue.10 A physician’s opinion on whether there is causal
relationship between the diagnosed condition and the implicated employment factor(s) must be
based on a complete factual and medical background.11 Additionally, the physician’s opinion
must be expressed in terms of a reasonable degree of medical certainty, and must be supported
by medical rationale, explaining the nature of the relationship between the diagnosed condition
and appellant’s specific employment factor(s).12
Certain healthcare providers such as physician assistants, nurse practitioners, physical
therapists, and social workers are not considered “physician[s]” as defined under FECA.13
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to FECA benefits.14 Additionally, chiropractors are considered physicians only to
the extent that their reimbursable services are limited to treatment consisting of manual
manipulation of the spine to correct a subluxation as demonstrated by x-ray.15
ANALYSIS
The Board finds that the evidence of record is sufficient to establish the medical
component of fact of injury.
OWCP accepted that the May 31, 2017 employment incident occurred as alleged.
However, it denied appellant’s claim because she failed to establish the medical component of
fact of injury. Appellant’s chiropractor, Dr. McCormick, diagnosed L4-5, L5-S1 subluxations.
However, OWCP found that he did not qualify as a physician because the June 6, 2017 x-ray he
relied upon was not signed by a physician. To the contrary, the Board notes that the June 6, 2017
lumbar imaging report was “electronically signed” by Dr. Davis.16 Moreover, Dr. McCormick
ordered the June 6, 2017 thoracic and lumbar imaging studies. Accordingly, the Board finds that

9

Shirley A. Temple, 48 ECAB 404, 407 (1997).

10

Robert G. Morris, 48 ECAB 238 (1996).

11

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

12

Id.

13

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

14

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a
physician assistant or certified nurse practitioner will be considered medical evidence if countersigned by a qualified
physician. Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1)
(January 2013).
15

5 U.S.C. § 8101(2); see Kathryn Haggerty, 45 ECAB 383, 389 (1994).

16

L.S., Docket No. 16-0375 (issued April 22, 2016).

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Dr. McCormick is a “physician” as defined under FECA, and his diagnosis of subluxation is
sufficient to establish the medical component of fact of injury.17
The Board further finds that although appellant established both components of fact of
injury, she has not met her burden of proof to establish causal relationship.
In June 9 and July 11, 2017 attending physician’s reports, Dr. McCormick diagnosed
subluxations at L4-5 and L5-S1. He checked a box in his June 9, 2011 report which indicated
that he believed that the diagnosis was caused or aggravated by the described employing activing
or generally stating that appellant’s symptoms correlated with the injury in his July 11, 2017
report. However, Dr. McCormick did not set forth medical reasoning supporting that the
physical effects of the accepted incident resulted in the diagnosed condition(s).18 The Board has
held that a medical report is of limited probative value on the issue of causal relationship if it
contains a conclusion regarding causal relationship which is unsupported by medical rationale.19
Therefore, Dr. McCormick’s reports are insufficient to meet appellant’s burden of proof.20
The July 19, 2017 reports from Ms. Brash, a nurse practitioner, are insufficient to meet
appellant’s burden of proof because Ms. Brash is not a physician as defined under FECA.21
While the Board finds that appellant established fact of injury, she has failed to meet her
burden of proof to establish causal relationship. Accordingly, OWCP’s July 25, 2017 decision is
affirmed as modified.
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 an injury
causally related to the accepted May 31, 2017 employment incident.

17

See supra note 15.

Merely checking the “yes” box on an attending physician’s report (Form CA-20) will not suffice for purposes
of establishing causal relationship. See D.D., 57 ECAB 734, 739 (2006); Deborah L. Beatty, 54 ECAB 340,
341 (2003).
18

19

C.M., Docket No. 14-0088 (issued April 18, 2014).

20

Deborah L. Beatty, supra note 18.

21

See supra notes 13 and 14.

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ORDER
IT IS HEREBY ORDERED THAT the July 25, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: March 14, 2018
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.R., claiming as widow of E.R., Appellant
and
DEPARTMENT OF AGRICULTURE, U.S.
FOREST SERVICE, Munising, MI, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 10-1963
Issued: May 25, 2011

Case Submitted on the Record

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

On July 27, 2010 appellant filed an application for review of a decision of the Office of
Workers’ Compensation Programs dated June 22, 2010. The appeal was docketed as
No. 10-1963.
The employee, a 65-year-old groundskeeper, struck his right elbow on the corner of a
building while mowing grass on August 14, 1998. He filed a claim for benefits, which the Office
accepted for right lateral epicondylitis.
In a Form CA-7 dated May 10, 2004, the employee requested a schedule award based on
a partial loss of use of his right upper extremity. He submitted a November 15, 2006 report from
Dr. Dee Ann Bialecki-Haase, a Board-certified family practitioner, who found that the employee
had a 10 percent impairment of the right upper extremity pursuant to the American Medical
Association, Guides to the Evaluation of Permanent Impairment (fifth edition) (A.M.A.,
Guides). By decision dated August 28, 2007, the Office granted the employee a schedule award
for a 10 percent permanent impairment of the right lower extremity.
In an August 25, 2008 report, Dr. Bialecki-Haase found that the employee had an 18
percent impairment of the right upper extremity pursuant to the fifth edition of the A.M.A.,
Guides. In a March 26, 2009 Form CA-7, the employee requested an additional schedule award
based on a partial loss of use of his right upper extremity.

By letter dated May 11, 2009, the Office advised Dr. Bialecki-Haase that she needed to
submit a new report and impairment rating in conformance with the updated, sixth edition of the
A.M.A., Guides, which became effective as of May 1, 2009.1 Dr. Bialecki-Haase did not
respond to this request. The employee died on May 29, 2009.
In a November 13, 2009 report, an Office medical adviser reviewed Dr. Bialecki-Haase’s
August 25, 2008 report and found that the employee had sustained a seven percent impairment of
the right lower extremity due to his accepted right lateral epicondylitis condition pursuant to
Table 15-4 at pages 398-400 of the sixth edition of the A.M.A., Guides.
By decision dated December 8, 2009, the Office denied appellant’s request for an
additional schedule award. It stated that the Office medical adviser’s seven percent impairment
rating represented the weight of the medical evidence because his November 13, 2009 report
contained the only impairment evaluation of record rendered in conformance with the updated,
sixth edition of the A.M.A., Guides. The Office did not discuss or analyze his findings or
indicate whether he properly applied the relevant tables of the A.M.A., Guides.
By letter dated December 15, 2009, appellant’s attorney requested an oral hearing, which
was held on March 19, 2010.
By decision dated June 22, 2010, an Office hearing representative affirmed the
December 8, 2009 Office decision. The hearing representative stated that the Office medical
adviser reviewed the findings from Dr. Bialecki-Haase’s August 25, 2008 report and properly
applied the relevant tables of the A.M.A., Guides. However, she did not discuss or analyze the
Office medical adviser’s findings or provide reasons to support her finding that his impairment
rating was properly rendered in accordance with the applicable tables of the sixth edition of the
A.M.A., Guides.
Section 20 C.F.R. § 10.126 requires the Office to issue a decision containing findings of
fact and a statement of reasons.2 The Office erred in its December 8, 2009 and June 22, 2010
decisions by failing to adequately support its reliance on the Office medical adviser’s
November 13, 2009 report and provide sufficient reasons why it found that his impairment rating
represented the weight of the medical evidence. The hearing representative’s decision is
additionally flawed because the only reason it provided for relying on the Office medical
adviser’s report was that it was the only impairment rating rendered in conformance with the
sixth edition of the A.M.A., Guides. This acceptance of a rating, merely on the basis that it was
rendered in conformance of the sixth edition, does not allow the Board a complete review of the
basis of the decision. As the hearing representative did not correct these omissions and make the
required findings in her June 22, 2010 decision, her affirmance of the December 8, 2009 Office
decision was in error.

1

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).
As of May 1, 2009, the sixth edition will be used. FECA Bulletin No. 09-03 (issued March 15, 2008).
2

20 C.F.R. § 10.126.

2

The Board finds that the Office failed to give proper consideration to the medical
evidence of record in this case. Accordingly, the case will be set aside and remanded for
consideration of the medical evidence pursuant to the standards set out in 5 U.S.C. § 8128(a) and
20 C.F.R. § 10.126. After such further development as the Office deems necessary, it should
issue an appropriate decision to protect appellant’s appeal rights.
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 22, 2010 be set aside and the case be remanded for further
action consistent with this order of the Board.
Issued: May 25, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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