United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.A., Appellant
and
U.S. POSTAL SERVICE, NORTH MIAMI
BRANCH POST OFFICE, Miami, FL, Employer
__________________________________________

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

Docket No. 14-350
Issued: October 28, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 2, 2013 appellant filed a timely appeal from June 28 and July 29, 2013
merit decisions and a September 17, 2013 nonmerit decision of the Office of Workers’
Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
appeal.2
ISSUES
The issues are: (1) whether OWCP abused its discretion by recovering travel
reimbursement for the period May 2, 2004 through May 1, 2013; (2) whether appellant received
a $45,316.35 overpayment of compensation for the period May 2, 2004 through May 1, 2013
because he received reimbursement for travel expenses to the ocean at Miami Beach which was
approved by OWCP; (3) whether OWCP properly found appellant at fault in the creation of the
1
2

5 U.S.C. §§ 8101-8193.

The Board notes that appellant submitted medical evidence with his appeal to the Board. The Board cannot
consider this evidence, however, as its review of the case is limited to the evidence that was before OWCP at the
time it rendered its final decision. 20 C.F.R. § 501.2(c)(1) (2009).

overpayment; and (4) whether it properly refused to reopen the claim for further review of the
merits pursuant to 5 U.S.C. § 8128(a).
On appeal appellant asserts that swimming at Miami Beach was recommended by his
attending orthopedic surgeon and there was no overpayment of compensation. He further asserts
that recovery would be against equity and good conscious and he would suffer severe financial
hardship in trying to repay the debt.
FACTUAL HISTORY
This case has previously been before the Board. In a September 5, 1990 decision, the
Board reversed OWCP decisions dated April 28 and December 6, 1989, finding that a conflict in
medical opinion arose regarding whether appellant continued to be disabled.3 The Board also
vacated a July 29, 1989 OWCP decision that denied a claimed April 14, 1988 work injury. In a
June 8, 1998 decision, the Board affirmed August 1 and December 8, 1995 OWCP decisions,
finding that it properly terminated appellant’s monetary compensation, effective
August 20, 1995.4 Further, appellant had not established any continuing disability after that date.
He remained entitled to medical benefits for his cervical condition. The facts of the previous
Board decisions are incorporated herein by reference.
Appellant came under the care of Dr. Dennis B. Zaslow, an osteopath, in August 1995.
In reports dated July 9, 1996 and August 28, 2000, Dr. Zaslow generally advised that appellant
should continue an aquatic therapy program.
On February 14, 2000 an OWCP hearing representative affirmed a May 12, 1999 OWCP
decision finding that appellant had not sustained a recurrence of disability on June 22, 1998. In
September 2003, OWCP found that a conflict in medical opinion had been created regarding
whether appellant had any disability as a result of the May 28, 1987 and April 14, 1988 work
injuries. It referred him to Dr. Bernard Gran, a Board-certified neurologist. In an October 13,
2003 report, Dr. Gran reviewed the medical record and provided findings on examination. He
determined that any abnormality in appellant’s cervical spine was age related and not related to
trauma. Dr. Gran advised that appellant had no restriction on sitting, standing, walking or use of
hands and lower extremities, and while lifting was restricted to 40 to 50 pounds, the restriction
was not due to the 1987 and 1988 work injuries.
In reports dated June 9, 2003 to February 16, 2005, Dr. Zaslow described physical
findings. He advised that appellant should continue with home exercises and massage therapy.
On August 9, 2005 Dr. Zaslow recommended aquatic therapy at home. He continued to submit
reports recommending home exercises. On March 28, 2006 Dr. Zaslow again recommended

3

Docket No. 90-578 (issued September 5, 1990).

4

Docket No. 96-644 (issued June 8, 1998). On May 28, 1987 appellant, a letter carrier, filed a traumatic injury
claim that was accepted for thoracic strain and subluxations at T4, T6 and T7. The claim was adjudicated by OWCP
under file number xxxxxx809. On April 14, 1988 appellant filed a second traumatic injury claim, adjudicated under
file number xxxxxx291 that was accepted for subluxations at C1 and L4-5. He stopped work at the employing
establishment in 1989 and was placed on the periodic compensation rolls. The files were doubled on
October 7, 1991.

2

aquatic exercises and therapy.5 On May 28, 2006 he noted that appellant had been swimming as
much as possible, per his instructions. On October 30, 2006 Dr. Zaslow requested authorization
for physical therapy. On April 20, 2007 he noted that appellant advised him that swimming was
very helpful. Dr. Zaslow also requested authorization for H-wave electrotherapy treatments in
April, on June 21 and September 12, 2007. On September 29, 2007 he stated that appellant
would be evaluated as needed. On January 10, 2008 Dr. Roberto A. Moya, a Board-certified
orthopedic surgeon and an associate of Dr. Zaslow, noted appellant’s complaints of bilateral arm
and leg radiculopathy. He stated that appellant was using a transcutaneous electrical nerve
stimulation (TENS) unit.6 Appellant submitted no further medical reports after this date.
In a December 10, 2009 letter to the Office of Personnel Management (OPM) regarding
his request for disability retirement, appellant contended that OWCP wrongfully refused to pay
benefits. He noted that the only therapy that he was “able to do prescribed by Dr. Zaslow are the
ones I do at home and when I travel to Miami Beach to swim. These are the only therapies I can
afford because they are free; none of these therapies are paid by OWCP or OPM.”
After appellant requested authorization for a bed, the employing establishment contacted
OWCP. In an April 2, 2010 telephone memorandum, OWCP noted reviewing his submitted bills
and found that they were travel reimbursements pertaining to the same address every few days
for 55 miles. It was unclear where appellant was going.
On June 5, 2012 a special agent with the employing establishment’s Office of Inspector
General (OIG) submitted an investigation report for the period July 6, 1993 to December 31,
2011 with supporting documentation. The investigation determined that, during this period,
appellant submitted 1,352 medical travel refund requests when he only had 90 medical or
rehabilitation appointments. The report noted that the refund requests for 1993 through 2003
seemed legitimate; but beginning in 2004, appellant submitted excessive travel refund requests.
The special report stated that appellant knowingly and willfully falsified a material fact, made
false, fictitious, fraudulent statements and representations, and used a report knowing that it
contained false, fictitious, or fraudulent statements or entries in connection with the receipt of
compensation benefit payments in violation of United States statutes regarding fraud to obtain
federal employee’s compensation, theft of government money and mail fraud. On the travel
refund request forms, (OWCP-957), appellant attested that he was receiving treatment at a
medical facility identified as “Miami Ocean Front” at 1700 Ocean Front, Miami Beach, FL
33139, which was a 55-mile roundtrip from his residence.7 The report noted that no medical
facility existed at the address. Appellant was interviewed by an employing establishment OIG
agent on April 24, 2012 and stated that he travelled to Miami Beach to go swimming. A medical
travel refund request form completed by appellant on May 9, 2011 was attached in which he
listed that the medical facility was “Miami Ocean Front” with an address at 1700 Ocean Front,

5

By decision dated January 31, 2006, an OWCP hearing representative affirmed a May 28, 2004 OWCP decision
that denied appellant’s June 19, 2003 schedule award claim.
6

Dr. Zaslow died in 2008.

7

The medical travel refund request form contains a payee’s certification clause for signature that the information
provided is true and correct. It further provides that any knowing false statement or misrepresentation to obtain
reimbursement from OWCP as subject to civil penalties and prosecution.

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Miami Beach, Florida 33139. Also attached was a 27-page printout of appellant’s submitted
travel request from 1996 through 2011.
In correspondence dated May 13, 2013, OWCP requested that appellant submit updated
medical information. After a review of his record, it noted multiple pharmacy charges and
excessive travel reimbursements had been paid. On April 18, 20 and 21, 2013 appellant
requested reimbursement for 55-mile roundtrips for travel to the Miami ocean front each day.
OWCP requested that he identify the physician or medical office at this location and which
physician prescribed the treatments he received. Appellant responded on June 4, 2013 and stated
that he traveled from his house to Miami Beach for swimming therapy, which Dr. Zaslow had
prescribed. Appellant attached the March 28, 2006 report from Dr. Zaslow, who recommended
ongoing aquatic exercises and therapy.
By decision dated June 28, 2013, OWCP recovered appellant’s claims for travel
reimbursement from his home to the Miami ocean front at 1700 Ocean Front, Miami Beach,
Florida 33139 commencing May 2, 2004. It determined that there was no medical or physical
therapy office at such address. For the period May 2, 2004 through May 1, 2013, excluding
dates when he received medical treatment, a total of $45,316.35 had been paid for travel to swim
at Miami Beach. OWCP noted that such therapy had never been approved and, while
Dr. Zaslow had generally recommended aquatic therapy, he did not recommend such therapy in
Miami Beach or address how it would be likely to cure or give relief to the accepted conditions.
It noted that OWCP-957 forms submitted by appellant identified medical facilities as a hospital,
office/clinic or laboratory.
On June 28, 2013 OWCP made a preliminary finding that appellant received a
$45,316.35 overpayment of compensation because he received travel expense reimbursement
from May 2, 2004 through May 1, 2013 for swimming at Miami Beach which was not approved
by OWCP. It found him at fault in the creation of the overpayment because he knew or should
have known that OWCP had not approved swimming at Miami Beach as a form of therapy.
Appellant was provided an overpayment questionnaire, an overpayment action request, and a 27page printout of the travel reimbursements made to him from May 2, 2004 through May 1, 2013,
which totaled $45,316.35. He was provided 30 days to respond. The record also includes a 300page printout of appellant’s bill payment history from January 1, 2004 to May 13, 2013.
Appellant did not respond to the preliminary overpayment letter.
By decision dated July 29, 2013, OWCP finalized the overpayment decision, finding that
he was at fault in the creation of an overpayment of compensation in the amount of $45,316.35.
Appellant was instructed to forward payment in full or contact OWCP.
On August 2, 2013 appellant telephoned OWCP. He contended that he did not receive
the overpayment decision because he was out of the country from June 29 through July 29, 2013.
On August 8, 2013 appellant requested reconsideration with OWCP. He stated that the June 28,
2013 preliminary decision was not contested within 30 days because his mail was being held.
Appellant attached a letter from the post office indicating that his mail was held beginning
June 29 to July 29, 2013, when he picked up accumulated mail.
In a nonmerit decision dated September 17, 2013, OWCP denied appellant’s
reconsideration request, with regard to the June 28, 2013 decision on the grounds that he did not
raise any substantive legal questions or submit new and relevant evidence.
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LEGAL PRECEDENT -- ISSUE 1
Section 8103 of FECA provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree or the period of disability, or aid in lessening the amount of the monthly
compensation.8 While OWCP is obligated to pay for treatment of employment-related
conditions, the employee has the burden of establishing that the expenditure is incurred for
treatment of the effects of an employment-related injury or condition.9
Section 10.310(a) of the implementing regulations provide that employee is entitled to
receive all medical services, appliances or supplies which a qualified physician prescribes or
recommends and which OWCP considers necessary to treat the work-related injury.10 OWCP
procedures provide that nonmedical equipment such as waterbeds, saunas, weight-lifting sets,
exercise bicycles, etc., may be authorized only if recommended by the attending physician and if
OWCP finds that the item is likely to cure, give relief, reduce the degree or the period of
disability, or aid in lessening the amount of monthly compensation.11
Section 2.810.18 of OWCP procedures specifically addresses health club membership
and indicates that such memberships may be authorized if rationalized medical evidence
establishes that such membership would be therapeutic to treat the effects of an accepted injury.
It provides the specific information needed from the compensationer and from his or her
physician. The physician is to describe the specific therapy and exercise routine needed to
address the effects of the employment injury, the anticipated or actual effects of the regimen, the
treatment goals sought or attained, and whether the recommended exercise routine can be
performed at home or in a public facility such as a community recreation center or pool.12
Section 10.315 of OWCP regulations provide, in relevant part that the employee is
entitled to reimbursement of reasonable and necessary expenses, including transportation needed
to obtain authorized medical services, appliances or supplies. To determine what is a reasonable
distance to travel, OWCP will consider the availability of services, the employee’s condition and
the means of transportation. Generally, 25 miles from the place of injury, the work site or the
employee’s home, is considered a reasonable distance to travel.13
In interpreting section 8103(a) of FECA, the Board has recognized that OWCP has broad
discretion in approving services provided under FECA to ensure that an employee recovers from
his or her injury to the fullest extent possible in the shortest amount of time. OWCP has
8

5 U.S.C. § 8103; see Dona M. Mahurin, 54 ECAB 309 (2003).

9

Kennett O. Collins, Jr., 55 ECAB 648 (2004).

10

20 C.F.R. § 10.310(a).

11

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Services and Supplies, Chapter 3.400.3(d)(5)
(October 1995).
12

Id. at Chapter 1.810.18 (September 2010).

13

20 C.F.R. § 10.315; see W.J., Docket No. 10-1944 (issued June 1, 2011).

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administrative discretion in choosing the means to achieve this goal and the only limitation on
OWCP’s authority is that of reasonableness.14 It has broad discretion in considering whether to
reimburse or authorize travel expenses.15 Proof of causal relationship must include supporting
rationalized medical evidence.16
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a thoracic strain and subluxations at T4, T6 and
T7 due to a 1987 employment injury and subluxations at C1 and L4-5 due to a 1988 injury.
Following the termination of benefits in 1995, appellant remained entitled to medical benefits for
his cervical condition.
Appellant submitted numerous medical travel refund request forms. As found in the
record, he listed the travel roundtrip from his home to a medical facility “Miami Ocean Front” at
1700 Ocean Front in Miami Beach, Florida, 33139. Appellant checked boxes on the claim form
indicating that he was travelling from his home to an “office/clinic.” On the forms, he certified
with his signature that the information he provided in connection with the travel refund request
was true and correct and that he was aware that any misrepresentation to obtain reimbursement
from OWCP was subject to penalties.
The OIG investigation established that the facility identified by appellant, “Miami Ocean
Front,” did not exist and that the address was fictitious. There is no medical facility or physical
therapy clinic at the address where he parked in Miami Beach.
Appellant asserted on appeal that aquatic therapy was recommended by his physician
Dr. Zaslow. The record indicates that on July 9, 1996 and August 28, 2000, Dr. Zaslow advised
that appellant could engage in physical therapy or swimming at home. On March 28, 2006 he
stated that he was recommending ongoing aquatic exercises and therapy, and on May 28, 2006
noted that appellant had been swimming as much as possible, per his instructions. On April 20,
2007 Dr. Zaslow noted that appellant told him that swimming had been very helpful. The record
does not establish that Dr. Zaslow or any other physician prescribed aquatic therapy to be
obtained at a medical or physical therapy facility in Miami Beach. Rather, appellant of his own
volition chose to swim at Miami Beach and misrepresented to OWCP that it was therapy at a
medical facility or clinic.
While OWCP is obligated to pay for treatment of employment-related conditions, the
employee has the burden of establishing that the expenditure is incurred for treatment of the
effects of an employment-related injury or condition.17
OWCP has broad discretion in considering whether to reimburse or authorize travel
expenses.18 As the only limitation on OWCP’s authority is reasonableness, abuse of discretion is
14

R.L., Docket No. 08-855 (issued October 6, 2008).

15

See W.T., Docket No. 13-197 (issued June 3, 2013).

16

M.B., 58 ECAB 588 (2007).

17

Kennett O. Collins, Jr., supra note 8.

18

W.J., supra note 12.

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generally shown through proof of manifest error, clearly unreasonable exercise of judgment or
actions taken which are contrary to both logic and probable deduction from known facts.19 The
Board finds that the expenses appellant incurred for travel from May 2, 2004 through May 1,
2013 for 55 miles of round-trip travel to swim in the ocean are fraudulent. Thus, OWCP’s
recovery of his requests for reimbursement was properly within its discretion.20
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that where an overpayment of compensation had been
made because of an error of fact or law, adjustment shall be made by decreasing later payments
to which an individual is entitled. The only exception to this requirement is a situation which
meets tests set forth as follows in section 8129(b) which provides that adjustment or recovery by
the United States may not be made when incorrect payment has been made to an individual who
is without fault and when adjustment or recovery would defeat the purpose of FECA or would be
against equity and good conscience.21
ANALYSIS -- ISSUE 2
Appellant argued on appeal that he did not timely receive the June 28, 2013 preliminary
overpayment letter because he was out of the country and had submitted a hold mail request with
the post office. He did not notify OWCP that he was leaving the country. Under the mailbox
rule, a letter properly addressed and mailed in the due course of business, such as in the course of
OWCP’s daily activities, is presumed to have arrived at the mailing address in due course.22
Thus, it is presumed that appellant received the preliminary overpayment notification at his
mailing address of record absent any evidence that he timely notified OWCP that he would be
out of the country and unavailable to receive mail. Appellant, as a recipient of compensation,
has the general responsibility to timely notify OWCP of such conditions as could affect his
receipt of benefits. OWCP did not abuse its discretion in finding that appellant received the
preliminary overpayment notice.23
OWCP reimbursed appellant $45,316.35 for claimed travel expenses for the period
May 2, 2004 through May 1, 2013. The record includes a 27-page printout of travel
reimbursements made to him from May 2, 2004 through May 1, 2013. An overpayment of
compensation was created because appellant fraudently received reimbursements for travel
expenses totaling $45,316.35 that he was not entitled to receive.

19

See William B. Webb, 56 ECAB 156 (2004).

20

See W.T., supra note 14.

21

5 U.S.C. § 8129(a), (b); see Robert Craw, 38 ECAB 253 (1986).

22

D.C., Docket No. 09-1460 (issued April 19, 2010).

23

See R.H., Docket No. 09-1981 (issued June 11, 2010). Compare D.M., Docket No. 10-1539 (issued June 14,
2011) (a medical management nurse informed OWCP that appellant would be deployed).

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LEGAL PRECEDENT -- ISSUE 3
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”24
Section 10.433(a) of OWCP regulations provides that OWCP:
“[M]ay consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of
compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she receives from OWCP are proper. The recipient must
show good faith and exercise a high degree of care in reporting events which may
affect entitlement to or the amount of benefits. A recipient who has done any of
the following will be found to be at fault in creating an overpayment: (1) Made
an incorrect statement as to a material fact which he or she knew or should have
known to be incorrect; or (2) Failed to provide information which he or she knew
or should have known to be material; or (3) Accepted a payment which he or she
knew or should have known to be incorrect. (This provision applies only to the
overpaid individual).”25
To determine if an individual was at fault with respect to the creation of an overpayment,
OWCP examines the circumstances surrounding the overpayment. The degree of care expected
may vary with the complexity of those circumstances and the individual’s capacity to realize that
he or she is being overpaid.26
ANALYSIS -- ISSUE 3
The Board finds that appellant is at fault in creating the $45,316.35 overpayment because
he made an incorrect statement as to a material fact which he knew or should have known to be
incorrect. The record establishes that on numerous occasions from May 2, 2004 through May 1,
2013 appellant submitted medical travel refunds in which he misrepresented that he was
travelling to a medical facility “Miami Ocean Front” at 1700 Ocean Front, Miami Beach,
Florida. As noted, no medical clinic or physical therapy office existed at that address. Based on
these falsified claim forms, OWCP reimbursed him for travel expenses from his home to Miami
Beach for nonapproved medical services. Under the circumstances of this case, the Board finds
that appellant misrepresented a material fact in order to obtain reimbursement from OWCP
which makes him at fault in the creation of the overpayment. Appellant is therefore not eligible
for waiver of the overpayment.27

24

5 U.S.C. § 8129; see Linda E. Padilla, 45 ECAB 768 (1994).

25

20 C.F.R. § 10.433; see Sinclair L. Taylor, 52 ECAB 227 (2001); see also 20 C.F.R. § 10.430.

26

20 C.F.R. 10.433(b); Neill D. Dewald, 57 ECAB 451 (2006).

27

See generally Randall M. Thompson, Docket No. 05-1090 (issued November 2, 2005).

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LEGAL PRECEDENT -- ISSUE 4
Section 8128(a) of FECA vests OWCP with 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.28 Section 10.608(a) Title 20 of the Code of Federal Regulations
provide that a timely request for reconsideration may be granted if OWCP determines that the
employee has presented evidence and/or argument that meet at least one of the standards
described in section 10.606(b)(3).29 This section provides that the application for reconsideration
must be submitted in writing and set forth arguments and contain evidence that either: (i) shows
that OWCP erroneously applied or interpreted a specific point of law; or (ii) advances a relevant
legal argument not previously considered by OWCP; or (iii) constitutes relevant and pertinent
new evidence not previously considered by OWCP.30 Section 10.608(b) provides that when a
request for reconsideration is 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.31
ANALYSIS -- ISSUE 4
With his August 8, 2013 reconsideration request, appellant maintained that he did not
receive the overpayment decisions because he was out of the country from June 29 through
July 29, 2013. He attached a letter from the post office listing that his mail was being held for
this period. The only review of a final decision concerning an overpayment is an appeal to the
Board. The provisions of 5 U.S.C. §§ 8124(b) and 8128(a) regarding hearings and
reconsideration do not apply to a final overpayment decision.32 Thus, to the extent that appellant
sought reconsideration of the overpayment finding, this is precluded by OWCP regulations and
appellant has no further recourse before OWCP in regard to that matter.33
With regard to the travel reimbursement issue, the Board finds that appellant’s assertions
regarding an inability to contest the preliminary overpayment finding do not show that OWCP
erroneously applied or interpreted a specific point of law, and also do not advance a relevant
legal argument not previously considered. Appellant’s assertions are not relevant to the travel
reimbursement misrepresentation issue. His reconsideration made no specific argument with
regard to why OWCP improperly denied his claim for travel reimbursement. Appellant also did
not otherwise submit any new and relevant evidence with regard to whether OWCP properly
disallowed travel reimbursement beginning May 2, 2004.
As appellant did not show that OWCP erred in applying a point of law, advance a
relevant legal argument not previously considered or submit relevant and pertinent new evidence
28

5 U.S.C. § 8128(a).

29

20 C.F.R. § 10.608(a) (2011).

30

Id. at § 10.606(b)(3) (2011).

31

Id. at § 10.608(b) (2011).

32

20 C.F.R. § 10.440(b).

33

See id.; M.C., Docket No. 07-702 (issued September 26, 2007).

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not previously considered by OWCP, OWCP properly denied his reconsideration request with
regard to the June 28, 2013 decision that denied his claim for travel reimbursement.
CONCLUSION
The Board finds that OWCP did not abuse its discretion by disallowing travel
reimbursement for the period May 2, 2004 through May 1, 2013 and that appellant was at fault in
creating a $45,316.35 overpayment of compensation for the period May 2, 2004 through May 1,
2013 because he received reimbursement for travel expenses which OWCP never approved. The
Board further finds that OWCP properly denied appellant’s request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 17, July 29 and June 28, 2013 are affirmed.
Issued: October 28, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE,
Philadelphia, PA, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-16
Issued: March 9, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 1, 2008 appellant filed a timely appeal from December 10, 2007 and June 20,
2008 decisions of the Office of Workers’ Compensation Programs adjudicating his claim for a
schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant has more than 11 percent impairment of his right upper
extremity for which he received a schedule award.

FACTUAL HISTORY
This is the second appeal in this case.1 By decision dated October 4, 2007, the Board
remanded the case for further development of the medical evidence. The facts of the previous
Board decision are incorporated herein by reference.
On October 15, 2007 Dr. Arnold T. Berman, a Board-certified orthopedic surgeon and an
Office medical adviser, reviewed the medical evidence, including an October 20, 2003 report
from Dr. Jatin D. Gandhi, a Board-certified orthopedic surgeon and Office referral physician,
and a January 8, 2004 report from Dr. Nicholas Diamond, an osteopathic specialist in pain
management.2 Dr. Berman found that appellant had no more than 11 percent right upper
extremity impairment, including 4 percent for decreased range of motion in the wrist, 4 percent
for Grade 3 sensory deficit in the right elbow due to ulnar nerve compression and 3 percent for
pain in the right shoulder.3 He indicated that appellant’s right shoulder pain was based on
mechanical abnormalities due to inflammation of the rotator cuff and associated structures, not a
nerve condition. Dr. Berman stated that, because appellant’s shoulder pain was related to
shoulder mechanics, not a nerve condition, the only method to rate pain in that situation was to
use Figure 18-1 at page 574 of the A.M.A., Guides. He indicated that Dr. Diamond was
incorrect in finding impairment for motor strength deficit of the right shoulder supraspinatus
muscle, in the section of the A.M.A., Guides relating to peripheral nerve disorders,4 because
there was no evidence of weakness related to the suprascapular nerve which innervates the
supraspinatus muscle.

1

See Docket No. 07-1111 (issued October 4, 2007). On July 9, 2002 appellant, then a 43-year-old painter,
sustained an injury to his right arm when he fell while exiting a high-reach basket. The Office accepted his claim
for a right arm contusion. On May 5, 2004 appellant filed a claim for a schedule award. On February 15, 2005 the
Office granted him a schedule award for 7 percent impairment of his right upper extremity (4.2 percent, rounded to 4
percent, for sensory deficit of the ulnar nerve, according to Table 16-15 at page 492 of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) and 3 percent for pain, according
to Figure 18-1 at page 574. By decision dated March 29, 2006, it granted appellant an additional schedule award
based on four percent additional impairment for right wrist range of motion of 50 degrees dorsiflexion and 50
degrees of flexion, according to Figure 16-28 at page 467. In its February 15, 2000 decision, the Office accepted the
additional conditions of a triangular fibrocartilaginous complex rupture of the right wrist, a triquetrum unit ligament
rupture of the right wrist, ulnar neuropathy of the right elbow, rotator cuff syndrome of the right shoulder, a cervical
sprain and cervical disc herniations at C4-5 and C6-7. It affirmed the March 29, 2006 schedule award decision on
October 17, 2006.
2

Dr. Gandhi’s October 20, 2003 report and Dr. Diamond’s January 8, 2004 report were addressed in the Board’s
October 4, 2007 decision.
3

See Federal (FECA) Procedural Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002) (these procedures contemplate that, after obtaining all necessary medical
evidence, the file should be routed to an Office medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides, with the medical adviser providing rationale for the
percentage of impairment specified, especially when there is more than one evaluation of the impairment present).
4

In his January 8, 2004 report, Dr. Diamond found four percent impairment of appellant’s right upper extremity
due to a Grade 4 motor deficit of the suprascapular nerve, according to Table 16-11 at page 484 and Table 16-15 at
page 492 of the A.M.A., Guides.

2

By decision dated December 10, 2007, the Office denied appellant’s claim for an
increased schedule award. Appellant requested an oral hearing before an Office hearing
representative that was held on April 8, 2008.
In an April 18, 2008 report, Dr. Diamond found that appellant had 28 percent combined
impairment of his right upper extremity, including 6 percent for Grade 2 sensory deficit of the
ulnar nerve, according to Table 16-15 at page 492 of the A.M.A, Guides and Table 16-10 at page
482, 4 percent for Grade 4 motor deficit of the supraspinatus muscle, according to Table 16-11 at
page 484 and Table 16-15 at page 492 and 20 percent for right grip strength deficit, according to
Table 16-34 at page 509. He noted that the A.M.A., Guides states at page 508 that, if the
examiner believes that an individual’s loss of strength represents an impairing factor that has not
been considered adequately by other methods, the loss of strength may be rated separately.
Otherwise, the impairment rating based upon objective anatomic findings takes precedence.
Dr. Diamond stated that appellant sustained a significant injury to his right upper extremity and,
although he had full range of motion, his grip strength was markedly decreased. After reviewing
the findings on physical examination, diagnoses and current complaints, he felt that the
appropriate method to rate appellant’s right wrist loss of strength was the grip strength method.
Dr. Diamond stated that appellant’s right wrist loss of strength was not adequately considered by
other impairment rating methods. He noted that his impairment rating for appellant no longer
included three percent for pain because the sensory deficit impairment of appellant’s right wrist
ulnar nerve incorporated impairment due to pain.5
By decision dated June 20, 2008, an Office hearing representative affirmed the
December 10, 2007 decision.6
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act7 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.8
Section 8123(a) of the Act provides that, “if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary

5

The Board notes that Dr. Diamond’s April 18, 2008 report was not routed to an Office medical adviser pursuant
to Office regulations. See supra note 3.
6

Subsequent to the June 20, 2008 Office decision, appellant submitted additional evidence. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.
7
8

5 U.S.C. § 8107.

20 C.F.R. § 10.404 (1999).
(5 ed. 2001).

Effective February 1, 2001, the Office began using the A.M.A., Guides

th

3

[of Labor] shall appoint a third physician who shall make an examination.”9 Where a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background, must be given special weight.
ANALYSIS
On October 15, 2007 Dr. Berman reviewed the medical evidence and calculated that
appellant had no more than 11 percent right upper extremity impairment, including 4 percent for
decreased range of motion in the wrist, 4 percent for sensory loss and pain in the right elbow due
to ulnar nerve compression and 3 percent for pain in the right shoulder. He indicated that
appellant’s right shoulder pain was based on mechanical abnormalities due to inflammation of
the rotator cuff, not a nerve condition. Dr. Berman stated that, because appellant’s shoulder pain
was related to shoulder mechanics, not a nerve condition, the only method to rate pain in that
situation was to use Figure 18-1 at page 574 of the A.M.A., Guides. He indicated that
Dr. Diamond was incorrect in finding impairment for motor strength deficit of the right shoulder
supraspinatus muscle in the section of the A.M.A., Guides relating to peripheral nerve disorders
because there was no evidence of weakness related to the suprascapular nerve.
In an April 18, 2008 report, Dr. Diamond found that appellant had 28 percent combined
impairment of his right upper extremity, including 6 percent for sensory deficit of the ulnar
nerve, according to Table 16-15 at page 492 of the A.M.A, Guides and Table 16-10 at page 482,
4 percent for Grade 4 motor deficit of the right shoulder supraspinatus muscle, according to
Table 16-11 at page 484 and Table 16-15 at page 492 and 20 percent for right grip strength
deficit, according to Table 16-34 at page 509. Regarding impairment due to motor deficit, the
Board found in its October 4, 2007 decision that Dr. Berman provided detailed medical rationale
explaining why impairment based on right shoulder motor deficit was not established. In his
April 18, 2008 report, Dr. Diamond provided no rationale explaining his determination of motor
deficit impairment and he did not address Dr. Berman’s rationale in excluding motor deficit
impairment. Therefore, it is not established that appellant is entitled to additional impairment
based on right shoulder motor deficit. Dr. Diamond noted that the A.M.A., Guides states at page
508 that, if the examiner believes an individual’s loss of strength represents an impairing factor
that has not been considered adequately by other methods, the loss of strength may be rated
separately. He stated that appellant sustained a significant injury to his right upper extremity and
his grip strength was markedly decreased. Dr. Diamond found that appellant’s loss of strength
represented a factor that was not considered adequately by other impairment rating methods. For
that reason, he included 20 percent impairment for right wrist loss of grip strength in his rating of
appellant’s right upper extremity. Although Dr. Diamond provided rationale in his April 18,
2008 report for including impairment for loss of grip strength based on Table 16-34 at page 509,
he did not follow the procedures in the A.M.A., Guides for determining grip strength. Section
16.8b, titled “Grip and Pinch Strength”, at page 508, provides that grip strength measurements
are to be determined by using a Jamar dynamometer. Dr. Diamond did not provide any objective
measurements obtained by Jamar dynamometer. Additionally, he did not explain how he
9

5 U.S.C. § 8123(a); see also Raymond A. Fondots, 53 ECAB 637 (2002); Rita Lusignan (Henry Lusignan), 45
ECAB 207 (1993).

4

calculated 20 percent impairment from Table 16-34 which provides for a range of 10 to 30
percent impairment. Due to these deficiencies, Dr. Diamond has not established that appellant
has impairment of his right upper extremity due to right wrist loss of grip strength.
The Board finds that there is a conflict in medical opinion between Dr. Berman and
Dr. Diamond regarding appellant’s impairment due to right elbow ulnar nerve sensory deficit and
impairment due to right shoulder pain. Regarding right elbow sensory deficit, Dr. Berman
calculated 4 percent impairment based on a Grade 3 sensory deficit, according to Table 16-10 at
page 484 and Table 16-15 at page 492 of the A.M.A., Guides (60 percent maximum for Grade 3
multiplied by 7 percent maximum for the ulnar nerve equals 4.2 percent, rounded to 4 percent).
However, Dr. Diamond calculated 6 percent impairment based on Grade 2 impairment (80
percent maximum for Grade 2 multiplied by 7 percent maximum for the ulnar nerve equals 5.6
percent, rounded to 6 percent). Neither physician provided rationale explaining his choice of
grade from Table 16-10 at page 482. Therefore, an unresolved conflict exists on the matter of
appellant’s right upper extremity impairment due to right elbow sensory deficit. Regarding
appellant’s right shoulder pain, Dr. Berman provided rationale for his inclusion of an additional
three percent impairment based on Chapter 18 of the A.M.A., Guides. Dr. Diamond noted that
appellant experienced right shoulder pain, but did not address the issue of whether he had any
impairment due to right shoulder pain. Therefore, the issue of appellant’s impairment related to
right shoulder pain requires further development.
Due to the conflict in the medical opinion evidence, the Office should refer appellant to
an impartial medical specialist for a thorough physical examination and evaluation of his right
upper extremity impairment. After such further development as it deems necessary, it should
issue an appropriate decision.
CONCLUSION
The Board finds that this case is not in posture for a decision. On remand, the Office
should refer appellant to an impartial medical specialist to resolve the conflict in the medical
evidence as to his right upper extremity impairment.

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 20, 2008 and December 10, 2007 are set aside and the case
remanded for further action consistent with this decision of the Board.
Issued: March 9, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Dallas, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-1062
Issued: September 19, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 7, 2014 appellant filed a timely appeal of a January 16, 2014 merit decision
granting a schedule award and a March 21, 2014 Office of Workers’ Compensation Programs’
(OWCP) merit decision finding an overpayment of compensation. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUES
The issues are: (1) whether appellant has more than 21 percent impairment of her right
leg or 31 percent impairment of her left leg for which she received schedule awards; (2) whether
appellant received an overpayment of compensation in the amount of $897.94 for the period
from August 12 through 24, 2013 for which she was not at fault; and (3) whether OWCP abused
its discretion by denying waiver of recovery.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 20, 2004 appellant, then a 51-year-old nursing assistant, filed a traumatic
injury alleging that she slipped in liquid and injured her knees and thigh in the performance of
duty on August 5, 2004. OWCP accepted her claim for strain/sprain of the lateral collateral
ligament in his right knee. On June 21, 2005 Dr. John Tsu-Yuan Wey, a Board-certified
orthopedic surgeon, performed a right knee arthroscopy with partial medial and lateral
meniscectomy and chondroplasty of the patella and lateral compartment of the right knee. He
performed a left knee arthroscopy with a partial lateral meniscectomy and chondroplasty of the
patella and lateral tibial plateau of the left knee on August 9, 2005. OWCP accepted the
additional conditions of tear of the right medial meniscus, tear of the left lateral meniscus and
primary osteoarthritis bilaterally. Appellant returned to light-duty work on October 3, 2005.
In a decision dated January 22, 2007, OWCP granted appellant schedule awards for 10
percent impairment of the right lower extremity and 2 percent impairment of the left lower
extremity.
Appellant underwent a magnetic resonance imaging (MRI) scan of her left knee on
January 28, 2010, which demonstrated stage 3 chondromalacia patella, stage 2 chondromalacia
involving the lateral compartment, mild tricompartmental osteoarthritis and acute grade 1 strain.
An MRI scan of her right knee on January 18, 2010 demonstrated moderate lateral compartment
osteoarthritis with extensive articular cartilage thinning with an area of bone absence and
concavity and mild acute irritation of the medial collateral ligament complex. On March 2, 2010
Dr. Wey performed a left knee arthroscopy with partial lateral meniscectomy and
tricompartmental chondroplasty. He performed a right knee arthroscopy on May 4, 2010 for a
partial lateral meniscectomy and tricompartmental chondroplasty of the right knee. Appellant
returned to light-duty work on July 26, 2010 as a nursing assistant earning wages of $763.83 per
week.
In a preliminary notice of overpayment dated July 28, 2010, OWCP found that appellant
returned to work on July 26, 2010 but was paid compensation through July 31, 2010 resulting in
an overpayment in the amount of $384.66 for which she was at fault. It administratively
terminated this debt in an August 17, 2010 decision as it was less than $600.00 and not cost
efficient to pursue. By decision dated October 1, 2010, OWCP found that appellant’s actual
earnings as a nursing assistant fairly and reasonably represented her wage-earning capacity.
On September 7, 2011 OWCP granted appellant a schedule award for an additional six
percent impairment of her left lower extremity.
Dr. Diane S. Litke, a Board-certified orthopedic surgeon, examined appellant on
November 15, 2011 for bilateral knee pain. She noted appellant’s history of employment injury
and medical treatment. Dr. Litke found that both knees showed mild valgus, positive lateral malt
racking of the patellas, positive patellofemoral crepitus and lateral joint line tenderness. X-rays
demonstrated complete loss of lateral joint space and significant patellofemoral arthritis in both
knees. Dr. Litke diagnosed degenerative joint disease, bilateral knees. She performed a right
knee total arthroplasty on April 9, 2012.

2

OWCP paid wage-loss benefits during appellant’s surgeries and recovery. It placed her
on the periodic rolls on April 17, 2012.
In a note dated July 19, 2012, Dr. Litke stated that appellant’s right knee showed no
instability and excellent range of motion with no pain. Appellant returned to work on
July 30, 2012.
OWCP authorized a left total knee arthroplasty, which Dr. Litke performed on May 6,
2013 due to degenerative joint disease of the left leg. It again placed appellant on the periodic
rolls on May 22, 2013. Appellant returned to full duty on August 12, 2013. Her weekly pay rate
in May 2013 was $794.53. In a note dated August 27, 2013, Dr. Litke stated that appellant had
no pain in either knee or that her range of motion was from 0 to 130 degrees bilaterally.
In a letter dated August 28, 2013, OWCP informed appellant of the preliminary
determination that she had received an overpayment of compensation in the amount of $897.94
as she returned to full duty on August 12, 2013 but received compensation benefits through
August 24, 2013. It found that she was not at fault in the creation of the overpayment.
On September 6, 2013 appellant requested a prerecoupment hearing before an OWCP
hearing representative on the issues of fact of overpayment and waiver. She stated that she
reported her planned return to work two weeks before it occurred. Appellant completed the
overpayment recovery questionnaire and noted that her monthly income was $2,100.00. She
listed her rent or mortgage as $857.00 per month, her food as $400.00 per month, her clothing as
$120.00 per month, her utilities as $600.00 per month and her miscellaneous expenses as
$200.00 per month. Appellant also had monthly debts of $84.00 for total monthly expenses of
$2,261.00. She stated that she had no bank balances, real estate or personal property. Appellant
stated that she was not at fault in the creation of the overpayment as she reported her return to
work. She noted that she was planning to retire on October 31, 2013 due to her knee surgeries.
Appellant requested a schedule award on September 23, 2013. Dr. Litke applied the sixth
edition of the A.M.A., Guides to appellant’s right knee finding of mild decrease in motion in the
right knee with 125 degrees of flexion. Applying the appropriate formula Dr. Litke based
functional history grade modifier 0, physical examination grade modifier 0 and clinical studies
grade modifier 3, she concluded that appellant had a class 2 impairment of her right knee due to
total knee replacement reduced to grade A or 21 percent impairment.
Dr. Litke found low grade aching in the left knee, mild-to-moderate decrease in left knee
range of motion with 100 degrees of flexion and mild limp in the left leg. She determined that
appellant had a class 3 fair result of her left total knee replacement with functional history grade
modifier 1, physical examination grade modifier 1 and clinical studies grade modifier 3 for grade
B for 34 percent impairment.2 There was moderate decrease in left knee range of motion with
100 degrees of flexion and mild limp in the left leg.

2

American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides), 511,
Table 16-3.

3

Dr. Ronald Blum, a medical adviser, reviewed the medical evidence on October 21, 2013.
He found that appellant’s right knee had a default value of 25 with a functional history grade
modifier 0, a physical examination grade modifier 0 and a clinical studies grade modifier 3 for a
net adjustment of -3 after applying the appropriate formula of the A.M.A., Guides. Dr. Blum
agreed with the 21 percent impairment rating found by Dr. Litke, which he noted was a class 2,
grade A impairment. He concluded that appellant had an additional 11 percent impairment of
her right lower extremity.
In considering appellant’s left lower extremity impairment, Dr. Blum found that she had
class 3 impairment due to a fair result of her total knee replacement with a default value of 37
percent. He further found that her functional history grade modifier was 1, her physical
examination grade modifier was 1 and that her clinical studies grade modifier was 3 for a net
adjustment of -4 for 31 percent impairment, class 3, grade A. Dr. Blum noted that Dr. Litke
recommended 34 percent impairment but found that application of the appropriate formula to the
findings resulted in 31 percent. He concluded that appellant had an additional 23 percent
impairment to her left leg.
OWCP’s Branch of Hearings and Review provided appellant with a notice dated
December 18, 2013 and stated that her prerecoupment hearing was scheduled for February 3,
2014 at 11:15 am Eastern time. The notice included the toll free number and the pass code.
On January 16, 2014 OWCP granted appellant schedule awards for an additional 11
percent impairment of her right leg and an additional 23 percent impairment of her left leg.
Appellant requested a lump-sum payment on January 16, 2014. She accepted a lump-sum
payment of $38,666.37 for her schedule awards on January 23, 2014. OWCP made the payment
on February 14, 2014.
Appellant telephoned OWCP on February 3, 2014 and stated that she missed her oral
hearing due to the time difference. The hearing representative informed her that he would
conduct a review of the written record and provided her with 15 days to submit additional
evidence, confirmed by letter dated February 5, 2014. Appellant responded on February 10,
2014 and restated that she missed the call due to the time difference. She provided
documentation that her social security benefits were $1,461.70 a month beginning
December 2013. Appellant also provided rent checks in the amount of $595.00 and utility bills
for $161.88 and $18.13.
By decision dated March 21, 2014, the hearing representative found that appellant
returned to full-duty work on August 12, 2013 but received wage-loss benefits through
August 24, 2013 resulting in an overpayment of compensation in the amount of $897.94 for
which she was not at fault. He further found that she had income in the amount of $4,908.00 per
month including wages3 and social security income and expenses in the amount of $1,417.00
based on rent of $595.00, energy bills of $18.00, food $400.00, clothing, $120.00, credit card
debt of $84.00 and miscellaneous expenses of $200.00. The hearing representative determined
that appellant had an excess of $3,491.00 per month. He further noted that she had recently
received a lump-sum schedule award in the amount of $38,666.37. The hearing representative
3

The hearing representative based this calculation on appellant’s pay rate for compensation purposes.

4

determined that recovering the overpayment would not defeat the purpose of FECA as appellant
did not need substantially all of her income to meet ordinary and necessary living expenses. He
noted that recovery would not be against equity and good conscience as there was no evidence
that she had relinquished a valuable right or changed her position for the worse. The hearing
representative determined that appellant should make the repayment in full.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss of loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. OWCP evaluates the
degree of permanent impairment according to the standards set forth in the specified edition of
the A.M.A., Guides.6
In addressing upper extremity impairments, the sixth edition requires identification of the
impairment class for the diagnosed condition (CDX), which is then adjusted by grade modifiers
based on Functional History (GMFH), Physical Examination (GMPE) and Clinical Studies
(GMCS). The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).7
ANALYSIS -- ISSUE 1
Appellant underwent bilateral total knee replacements. The A.M.A., Guides provided
that a total knee replacement with a good result is a class 2 impairment with a default rating of
25 percent.8 Dr. Litke determined that appellant had functional history grade modifier 0 with no
gait derangement,9 physical examination grade modifier 0 with no problems10 and clinical
studies grade modifier 3 based on her lost cartilage interval.11 Applying the appropriate formula,
appellant’s physicians concluded that appellant had class 2 impairment of her right knee due to
4

5 U.S.C. §§ 8101-8193, 8107.

5

20 C.F.R. § 10.404.

6

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, (6th ed. 2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.6a (January 2010); Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
7

A.M.A., Guides 411.

8

Id.

9

Id. at 516, Table 16-6.

10

Id. at 517, Table 16-7.

11

Id. at 519, Table 16-8.

5

total knee replacement reduced to grade A or 21 percent impairment. Dr. Blum agreed with this
rating in his October 21, 2013 report. There is no evidence in the record that appellant has more
than 21 percent impairment of her right lower extremity. Appellant previously received schedule
awards totaling 10 percent impairment of the right lower extremity and therefore properly
received an additional schedule award for 11 percent impairment.
In regard to appellant’s left lower extremity, Dr. Litke determined that she had a class 3
fair result for her total knee replacement.12 She reported low grade aching in appellant’s left
knee, mild-to-moderate decrease in left knee range of motion with 100 degrees of flexion and
mild limp in the left leg. Applying the A.M.A., Guides, Dr. Litke found a functional history
grade modifier 1 due to appellant’s limp,13 physical examination grade modifier 1 due to
tenderness14 and clinical studies grade modifier 3 due a cartilage interval loss15 for grade B for
34 percent impairment after application of the appropriate formula.16 The medical adviser
agreed with class and modifiers of appellant’s left lower extremity impairment, but found that
application of the appropriate formula to the findings (1-3) + (1-3) + (3-3) = -4 resulted in 31
percent the lowest grade within the class, grade A. The A.M.A., Guides provide that if the
formula results in a -4 adjustment the rating would move to the lowest grade within a class.17
The lowest grade in class 3 total knee replacement is A for a 31 percent impairment.18 It is well
established that, when the attending physician fails to provide an estimate of impairment
conforming to the A.M.A., Guides, his or her opinion is of diminished probative value in
establishing the degree of permanent impairment and OWCP may rely on the opinion of its
medical adviser to apply the A.M.A., Guides to the findings of the attending physician.19 The
Board finds that Dr. Litke’s application of the formula did not fully conform to the A.M.A.,
Guides and that OWCP properly relied on Br. Blum’s rating to determine appellant’s left leg
impairment of 31 percent, an additional 23 percent impairment to the left leg.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.

12

Id. at 511, Table 16-3.

13

Id. at 516, Table 16-6.

14

Id. at 517, Table 16-7.

15

Id. at 519, Table 16-8.

16

Id. at 511, Table 16-3.

17

Id. at 521.

18

Id. at 511, Table 16-3.

19

Linda Beale, 57 ECAB 429 (2006).

6

LEGAL PRECEDENT -- ISSUE 2
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.20
Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, he
or she may not receive salary, pay or remuneration of any type from the United States, except in
limited circumstances.21 OWCP’s regulations provide that compensation for wage loss due to
disability is available only for any periods during which an employee’s work-related medical
condition prevents his or her from earning the wages earned before the work-related injury.22
OWCP’s procedures provide that an overpayment in compensation is created when a claimant
returns to work but continues to receive wage-loss compensation.23
ANALYSIS -- ISSUE 2
The Board finds that appellant received an overpayment of compensation in the amount
of $897.94 for the period August 12 through 24, 2013. OWCP placed her on the periodic rolls
on May 22, 2013 and she received wage-loss compensation for total disability. The record
establishes that she returned to full duty on August 12, 2013. Appellant continued to receive
wage-loss compensation for total disability through August 24, 2013. As noted, she is not
entitled to receive wage-loss compensation for total disability after she has returned to work and
earned her regular salary. Accordingly, the Board finds that appellant received an overpayment
of compensation.
OWCP determined that from August 12 to 24, 2010 appellant received $847.94 in total
net compensation, but was not entitled to any compensation during this period. Appellant has
not contested the amount of the overpayment. The Board finds that OWCP properly determined
that she received an overpayment of compensation in the amount of $847.94 from August 12
through 24, 2013 for working with no loss of wages.
LEGAL PRECEDENT -- ISSUE 3
Section 8129(a) of FECA provides that when an overpayment of compensation occurs
“because of an error of fact of law,” adjustment or recovery shall be made by decreasing later

20

5 U.S.C. § 8102.

21

Id. at § 8116(a).

22

20 C.F.R. § 10.500(a).

23

R.A., Docket No. 14-539 (issued June 24, 2014); Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Initial Overpayment Actions, Chapter 6.200.2(a) (May 2004).

7

payment to which the individual is entitled.24 The only exception to this requirement that an
overpayment must be recovered is set forth in section 8129(b):
“Adjustment or recovery by the United States may not be made when incorrect
payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of FECA or would be against
equity and good conscience.”
Thus, a finding that appellant was without fault is not sufficient, in and of itself, for
OWCP to waive the overpayment. OWCP must exercise it discretion to determine whether
recovery of the overpayment would “defeat the purpose of FECA or would be against equity and
good conscience,” pursuant to the guidelines provided in the implementing federal regulations.
Section 10.436 of the implementing regulations25 provides that recovery of an
overpayment will defeat the purpose of FECA if recovery would cause hardship by depriving a
presently or formerly entitled beneficiary of income and resources needed for ordinary and
necessary living expenses and outlines the specific financial circumstances under which recovery
may be considered to defeat the purpose of FECA.
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship attempting to repay the debt and when an individual, in reliance on
such payments or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.26
Section 10.438(a) provides that the individual who received the overpayment is
responsible for providing information about income, expenses and assets as specified by OWCP,
as this information is needed to determine whether or not recovery of an overpayment would
defeat the purpose of FECA or be against equity and good conscience.27 This information would
also be used to determine the repayment schedule, if necessary. Section 10.438(b) provides that
failure to submit the requested information within 30 days of the request shall result in denial of
waiver.28
ANALYSIS -- ISSUE 3
OWCP determined that appellant was not at fault in the creation of the overpayment and
proceeded to determine whether the overpayment was subject to waiver. Appellant completed
the overpayment recovery questionnaire and indicated that she had income of $2,100.00. She
24

5 U.S.C. § 8129(a).

25

20 C.F.R. § 10.436.

26

Id. at § 10.437.

27

Id. at § 10.438(a).

28

Id. at § 10.438(b).

8

later indicated that she received social security benefits in the amount of $1,461.70 a month
beginning December 2013. Appellant listed her rent or mortgage as $857.00 per month, her food
as $400.00 per month, her clothing as $120.00 per month, her utilities as $600.00 per month and
her miscellaneous expenses as $200.00 per month. She also indicated that she had monthly debts
of $84.00 for total monthly expenses of $2,261.00. The hearing representative found that
appellant had income in the amount of $4,908.00 per month including wages and social security
income. He noted that she did not provide documentation of her all her listed expenses resulting
a reduction of her expenses to $1,417.00.29 The hearing representative determined that
appellant’s monthly income exceeded her monthly expenses by more than $50.00 and that
therefore she did not need substantially all of her current income to meet her ordinary and
necessary living expenses. As appellant’s income exceeds expenses by more than $50.00, the
Board finds that OWCP properly determined that recovery of the overpayment would not defeat
the purpose of FECA.
Appellant does not argue and the record does not establish that recovery of the debt
would be against equity and good conscience. She did not show that she gave up a valuable right
or changed her position for the worse in reliance on the overpayment.30 Appellant failed to
establish that recovery of the overpayment would defeat the purpose of FECA or be against
equity and good conscience. The Board finds that she has failed to establish that OWCP abused
its discretion by refusing to waive the $897.94 overpayment. With respect to the recovery of the
overpayment, the Board notes its jurisdiction on appeal is limited to reviewing those cases where
OWCP seeks recovery from continuing compensation benefits under FECA.31
CONCLUSION
The Board finds that appellant has no more than 21 percent impairment of her right lower
extremity and 31 percent impairment of her left lower extremity for which she has received
schedule awards. The Board further finds that she received an overpayment of compensation in
the amount of $897.94 and that OWCP did not abuse its discretion in denying waiver of recovery
of the overpayment.

29

The Board notes that appellant’s earnings and social security income would exceed all her listed expenses of
$2,261.00 by $2,647.00 per month, more than $50.00.
30

D.S., Docket No. 14-378 (issued June 11, 2014).

31

D.R., 59 ECAB 148 (2007).

9

ORDER
IT IS HEREBY ORDERED THAT the March 21 and January 16, 2014 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: September 19, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.O., Appellant
and
DEPARTMENT OF JUSTICE, DRUG
ENFORCEMENT ADMINISTRATION,
Greenbelt, MD, Employer
__________________________________________

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

Docket No. 15-0852
Issued: September 28, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 10, 2015 appellant filed a timely appeal of an October 20, 2014 merit decision
and a February 2, 2015 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.2
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish permanent
impairment warranting a schedule award; and (2) whether OWCP properly denied appellant’s
request for reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

Appellant filed a timely request for oral argument, pursuant to 20 C.F.R. § 501.5(b). After exercising its
discretion pursuant to 20 C.F.R. § 501.5(a) the Board, by an October 8, 2015 order, denied appellant’s request
because it could adequately address appellant’s contentions based on a review of the case record. Order Denying
Request for Oral Argument, Docket No. 15-0852 (issued July 23, 2015).

FACTUAL HISTORY
On February 25, 2014 appellant, then a 52-year-old special agent, filed a claim for
traumatic injury (Form CA-1) alleging pain in his right shoulder and biceps area on February 20,
2014 while carrying a weighted rifle case, ammunition, and numerous accessories during
firearms training.
Appellant underwent a magnetic resonance imaging (MRI) scan of his right shoulder on
March 20, 2014 which demonstrated partial thickness tears of the distal infraspinatus tendon, a
nondisplaced superior labrum anterior to posterior (SLAP) tear and evidence of subacromial
impingement and bursitis. On May 12, 2014 Dr. Sunjay Berdia, a Board-certified orthopedic
surgeon, opined that appellant had injured his right shoulder after a full day of firearms training
in February 2014. He noted that the MRI scan showed a high grade partial tear of the
infraspinatus tendon as well as a SLAP tear with a cyst for which surgical repair was
recommended. Dr. Berdia opined that appellant’s injuries were caused as a direct result of his
work duties in February.
OWCP accepted appellant’s claim on June 16, 2014 for sprain of the shoulder and upper
arm on the right, superior glenoid labrum lesion, and sprain of the right rotator cuff.
On July 22, 2014 Dr. Berdia performed an authorized arthroscopic SLAP repair,
subacromial decompression, mini-open rotator cuff repair and extensive debridement of the right
shoulder.
Appellant filed a claim for a schedule award (Form CA-7) on September 4, 2014. In a
letter dated September 9, 2014, OWCP requested additional medical evidence in support of this
claim. It noted that there was no narrative report describing appellant’s condition and whether or
not he had permanent impairment as a result of his accepted injuries. OWCP allowed 30 days
for a response.
Appellant submitted notes from Dr. Berdia dated March 10, May 8, and September 19,
2014 noting the history of injury and recommending physical therapy. He also submitted notes
from Valerie L. Silver, a physical therapist.
By decision dated October 20, 2014, OWCP denied appellant’s claim for a schedule
award finding that the medical evidence of record had failed to establish a permanent impairment
to a scheduled member.
In a form dated October 29, 2014 and received by OWCP on November 4, 2014,
appellant requested reconsideration of the October 20, 2014 decision. On October 27, 2014
Dr. Berdia opined that appellant had not reached maximum medical improvement. Appellant
continued to submit physical therapy notes from Ms. Silver and resubmitted Dr. Berdia’s
March 10 and 24 and May 8, 2014 notes.
Dr. Berdia completed a report on November 24, 2014 and opined that appellant had
reached maximum medical improvement. He reported that appellant had nearly full range of
motion, lacking 10 degrees of abduction, forward flexion and internal rotation. Dr. Berdia found
that appellant had good rotator cuff strength.
2

By decision dated February 2, 2015, OWCP declined to reopen appellant’s claim for
consideration of the merits as appellant had failed to submit relevant new evidence.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss of use of scheduled members or functions of the body. FECA, however, does not specify
the manner in which the percentage loss of a member shall be determined. The method used in
making such determination is a matter which rests in the discretion of OWCP. For consistent
results and to ensure equal justice, the Board has authorized the use of a single set of tables so
that there may be uniform standards applicable to all claimants. OWCP evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.5
Maximum improvement means that the physical condition of the injured member of the
body has stabilized and will not improve further. The determination of maximum medical
improvement is not to be based on surmise or prediction of what may happen in the future. A
schedule award is appropriate where the physical condition of an injured member has stabilized,
despite the possibility of an eventual change in the degree of functional impairment in the
member.6 The question of when maximum medical improvement has been reached is a factual
one which depends on the medical findings in the record and the determination of such date is
made in each case upon the basis of submitted medical evidence.7
ANALYSIS -- ISSUE 1
The Board finds that appellant failed to meet his burden of proof to establish permanent
impairment due to the accepted shoulder injury.
Appellant requested a schedule award on September 4, 2014. At the time he requested
his schedule award, there was no medical evidence of record addressing whether appellant had
reached maximum medical improvement or whether he had any permanent impairment of his
right shoulder following surgery. Dr. Berdia’s notes from March 10 through September 19, 2014
did not discuss appellant’s accepted right shoulder condition and did not address whether
appellant had reached maximum medical improvement. As noted above, a schedule award is
only appropriate where the physical condition of an injured member has stabilized and this is
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.5a (February 2013); and, Part 3 -- Medical, Schedule Awards, Chapter
3.700, Exhibit 1 (January 2010).
6

James Kennedy, Jr., 40 ECAB 620, 626 (1989).

7

Eugenia L. Smith, 41 ECAB 409, 413 (1990).

3

known as maximum medical improvement.8 Maximum medical improvement is a factual one
based on the medical findings in the record.9 As there was no medical evidence of record
discussing maximum medical improvement, appellant failed to meet his burden of proof to
establish permanent impairment warranting a schedule award.
Appellant also submitted notes from Ms. Silver, a physical therapist. As she is not a
physician, Ms. Silver’s notes do not constitute competent medical evidence and cannot meet
appellant’s burden of proof to establish his claim for permanent impairment.10
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
FECA provides in section 8128(a) that OWCP may review an award for or against
payment of compensation at any time on its own motion or on application by the claimant.11
Section 10.606(b)(3) of Title 20 of the Code of Federal Regulations provides that a claimant may
obtain review of the merits of the claim by submitting in writing an application for
reconsideration which sets forth arguments or evidence and shows that OWCP erroneously
applied or interpreted a specific point of law; or advances a relevant legal argument not
previously considered by OWCP; or includes relevant and pertinent new evidence not previously
considered by OWCP.12 Section 10.608 of OWCP’s regulations provides that when a request for
reconsideration is timely, but does meet at least one of these three requirements, OWCP will
deny the application for review without reopening the case for a review on the merits.13 Section
10.607(a) of OWCP’s regulations provides that to be considered timely an application for
reconsideration must be received by OWCP within one year of the date of OWCP’s merit
decision for which review is sought.14
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration on
the merits pursuant to 5 U.S.C. § 8128(a).

8

Supra note 6.

9

Supra note 7.

10

R.S., Docket No. 15-0988 (issued August 12, 2015); F.D., Docket No. 15-0868 (issued August 10, 2015).

11

5 U.S.C. §§ 8101-8193, 8128(a).

12

20 C.F.R. § 10.606(b)(3).

13

Id. at § 10.608.

14

Id. at § 10.607(a). Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations¸ Chapter 2.1602.4
(October 2011).

4

Appellant submitted a timely request for reconsideration of OWCP’s October 29, 2014
decision. In support of his request for reconsideration, appellant submitted a series of reports
from Dr. Berdia including a note dated October 27, 2014 finding that he had not reached
maximum medical improvement. These notes are not relevant to the underlying issue of
permanent impairment as Dr. Berdia opined that appellant had not reached maximum medical
improvement, a necessary medical standard prior to the determination of permanent impairment
for schedule award purposes. The Board finds that these notes do not constitute relevant and
pertinent new evidence requiring OWCP to reopen appellant’s claim for consideration of the
merits.
Appellant also submitted a report dated November 24, 2014 from Dr. Berdia. He
provided an opinion that appellant had reached maximum medical improvement following his
surgery and listed appellant’s shoulder range of motion and strength deficits. As the underlying
issue in OWCP’s October 29, 2014 decision was whether appellant had established permanent
impairment of a scheduled member, the Board finds that this report which does not include a
rating of permanent impairment under the A.M.A., Guides, is not relevant and pertinent new
evidence requiring OWCP to reopen appellant’s claim for consideration of the merits.
In support of his request for reconsideration, appellant also submitted notes from
Ms. Silver, a physical therapist. Physical therapists are not considered physicians under FECA.15
As these notes were not signed by a physician the notes have no probative value in establishing
appellant’s claim16 for permanent impairment, and do not constitute relevant and pertinent new
evidence requiring OWCP to reopen appellant’s claim for consideration of the merits.
Appellant also resubmitted Dr. Berdia’s March 10, 24 and May 8, 2014 notes. These
notes were previously considered by OWCP in reaching the October 29, 2014 decision. As this
evidence is repetitious, it cannot be considered new evidence and does not require OWCP to
reopen appellant’s claim for consideration of the merits.17
The Board finds that appellant’s request for reconsideration did not include supporting
evidence or argument in compliance with section 10.606(b)(3) and was not sufficient to require
OWCP to reopen appellant’s claim for review of the merits.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish permanent
impairment at the time of OWCP’s October 20, 2014 merit decision. The Board further finds
that OWCP properly denied merit review of appellant’s November 4, 2014 request for
reconsideration.

15

5 U.S.C. § 8101(2); Thomas R. Horsefall, 48 ECAB 180 (1996).

16

Merton J. Sills, 39 ECAB 572 (1988).

17

Eugene F. Butler, 36 ECAB 393, 398 (1984).

5

ORDER
IT IS HEREBY ORDERED THAT the February 2, 2015 and October 20, 2014
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: September 28, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6