United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. CUSTOMS & BORDER PROTECTION,
El Paso, TX, Employer
__________________________________________

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

Docket No. 09-2061
Issued: September 20, 2010

Case Submitted on the Record

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

JURISDICTION
On August 10, 2009 appellant filed an appeal from a July 8, 2009 decision of the Office
of Workers’ Compensation Programs. Pursuant to 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 the Office properly terminated appellant’s compensation
benefits on February 7, 2007 pursuant to 5 U.S.C. § 8106(c); and (2) whether appellant met her
burden of proof to establish that she sustained an emotional condition causally related to factors
of her federal employment.
On appeal appellant’s attorney asserts that the decision is contrary to fact and law.
FACTUAL HISTORY
On April 27, 2004 appellant, then a 47-year-old border patrol agent, fell backwards about
three feet while pursuing a suspect. She stopped work on May 4, 2004. The claim was accepted

for back and head contusions, neck and lumbar sprain/strains, intracranial hemorrhage and
displacement of cervical and lumbar intervertebral discs without myelopathy. Dr. Shankar
Sundrani, an attending Board-certified neurosurgeon, performed cervical spine surgery on
January 19, 2005 and lumbar spine surgery on April 26, 2005. Appellant returned to modified
duty on October 21, 2005 monitoring television cameras for six hours a day.1 She received
wage-loss compensation for two hours daily.
The Office referred appellant to Dr. Gary D. Barham, a Board-certified orthopedic
surgeon, for a second opinion evaluation. In a November 10, 2005 report, Dr. Barham provided
findings on examination and diagnosed post-traumatic cervical and lumbar disc herniations. He
advised that, while appellant could not return to her regular duties as a border patrol agent, she
could perform the duties of a permanent sedentary position for eight hours a day.
On November 11, 2005 appellant reduced her work to four hours daily and the Office
paid compensation for four hours a day. She stopped work on January 13, 2006 and did not
return. On January 19, 2006 Dr. Sundrani advised that she was off work until further notice.
In a January 25, 2006 report, Dr. A.I. Saheba, Board-certified in internal and
occupational medicine, noted appellant’s complaint of tingling and numbness in the left arm and
leg. He diagnosed status post surgery with radiculopathy and post-traumatic stress disorder
(PTSD). Dr. Saheba agreed with Dr. Sundrani that she could not work. A February 9, 2006
electromyography (EMG) and nerve conduction study (NCS) of the left arm and leg showed
residuals of an old injury of the lumbar paraspinals and was otherwise normal with no evidence
of radiculopathy. On February 28, 2006 Dr. Sundrani advised that appellant could work four
hours daily with sitting limited to two hours a day and with the restrictions continuing until she
completed work hardening. In reports dated February 16 and March 9, 2006, Dr. Saheba advised
that appellant could work modified duty for four hours daily on February 20, 2006, with sitting
limited to two hours a day. A March 7, 2006 functional capacity evaluation (FCE) stated that
appellant could not perform her regular duty but could perform light to medium work. On
April 11, 2006 appellant filed a claim for total disability beginning January 19, 2006.2
In March 27 and April 26, 2006 reports, Dr. Abraham J. Katz, a Board-certified
psychiatrist, advised that appellant could not work due to PTSD from her work injury, bipolar
disorder and depression and that she could not begin rehabilitation due to severe symptoms. He
treated her since April 12, 2002 and chronic pain caused the PTSD, mood swings, avoidance
symptoms, dissociative symptoms, somatic complaints, despair, fear, difficulty concentrating and
suicidal ideation. On April 26, 2006 Dr. Saheba noted that appellant did not want to engage in
work hardening and did not want to work.
On May 3, 2006 the Office informed appellant of the evidence needed to support her
emotional condition claim. In a May 16, 2006 report, Dr. Katz reiterated that appellant had
PTSD and bipolar disorder, both of which were directly related to her work injury. She needed
1

A job description indicates the position was law enforcement communications assistant and was considered
sedentary.
2

Appellant also filed a claim under the Federal Tort Claims Act.

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medication and psychotherapy indefinitely and was considered totally disabled. In reports dated
June 28 and July 12, 2006, Dr. Ed J. Borrego, a psychiatrist, advised that appellant was in an
intensive outpatient program and could not work due to bipolar disorder and PTSD, directly
related to the work injury.
The Office referred appellant to Dr. Eugenio Chavez-Rice, a Board-certified psychiatrist,
for a second opinion evaluation regarding her emotional condition. In a July 25, 2006 report,
Dr. Chavez-Rice noted that appellant was diagnosed with bipolar disorder prior to April 2002.
He described the work injury, provided examination findings and diagnosed bipolar disorder
Type 2, poorly treated; borderline personality disorder; the diagnoses noted in the statement of
accepted facts and depression. Addressing specific Office questions, Dr. Chavez-Rice advised
that appellant’s emotional condition was not due to her employment or a consequence of the
accepted work injuries. He found that she could not return to her job as border patrol agent
unless her bipolar disorder was controlled and concluded that she was totally disabled due to her
psychiatric condition.
Appellant was admitted to a mental health facility from July 25 to 26, 2006.
Dr. Borrego subsequently reiterated the diagnoses of PTSD, bipolar disorder,
occupational problems, chronic pain secondary to back injury and depression related to PTSD.
The Office found a conflict in the medical evidence between Dr. Barham and the
attending physicians regarding appellant’s work limitations and the hours she could work. It
referred her to Dr. James F. Hood, a Board-certified orthopedic surgeon, for an impartial
evaluation. In reports dated July 27 and August 2, 2006, Dr. Hood reviewed the medical record
and noted appellant’s complaints of neck and back pain. He provided findings on examination
and found that appellant could not return to her previous position as border patrol agent due to
the accepted surgeries; however, she could work eight hours of sedentary to light duty daily in an
interior environment with permanent restrictions of no bending, stooping, squatting, kneeling,
climbing or operating a motor vehicle at work; walking limited to one to two hours daily;
standing to two hours daily; reaching above the shoulder for one hour daily; twisting four hours
daily; and that she could sit and repetitively move her wrists and elbows for eight hours daily,
with a lifting restriction of 1 to 10 pounds frequently and 10 to 20 pounds occasionally.
In an August 24, 2006 report, Dr. Katz reiterated his diagnoses and advised that appellant
was totally disabled. On August 25, 2006 Dr. Sundrani advised that appellant suffered from
severe chronic pain and could not work until further notice.
On October 12, 2006 appellant filed a claim for PTSD due to the April 27, 2004
employment injury and submitted medical evidence previously of record.
By letter dated December 14, 2006, the employing establishment offered appellant a fulltime permanent position as sector enforcement specialist and referred to an attached position
description. The duties were described as sedentary with some standing, bending, carrying light
objects and driving and to be performed in an office environment that could have a high noise
level. Numerous deadlines were imposed due to the immediate nature of the work, which
created a stressful environment, and occasional travel and extensive overtime could be required.

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The letter further stated that the employer was willing to make the special accommodations
indicated by Dr. Hood, including no driving and working eight hours a day. On December 15,
2006 the Office advised appellant that the offered position of sector enforcement specialist by the
employing establishment was suitable. It stated that the duties and physical requirements of the
offered position were described in the enclosed job offer and that it was found to be suitable and
in accordance with the medical limitations provided by Dr. Hood. Appellant was notified that, if
she failed to report to work or failed to demonstrate that the failure was justified, her right to
compensation for wage loss or a schedule award would be terminated. She was given 30 days to
respond.3
In a December 15, 2006 report, Dr. Borrego reiterated his diagnoses and advised that
appellant could not be employed in any capacity. On December 28, 2006 appellant stated that
she was accepting the job offer under great duress and against her doctor’s advice. In a
January 18, 2007 letter, the employing establishment informed appellant that she should report
for work at 8:00 a.m. on February 5, 2007. On January 19, 2007 the Office advised appellant
that the reasons given for refusing to accept the offered position were not valid. She was given
an additional 15 days to accept the position.
In a February 12, 2007 decision, the Office terminated appellant’s monetary
compensation benefits on the grounds that she refused an offer of suitable work. It found that the
weight of the medical evidence rested with Dr. Hood and that an emotional condition had not
been accepted as employment related. On March 5, 2007 the Office doubled appellant’s
traumatic injury and emotional condition claims.4
On March 6, 2007 appellant, through counsel, requested a hearing.
By letter dated October 14, 2008, appellant asserted that she did not turn down the job
offer and had reported for duty on February 5, 2007, at which time she was told she would not be
allowed to work because additional paperwork from her physicians was needed. She noted that
she retired in June 2007 and contended that the offered position was very high stress and that she
wanted a position that met her medical needs. Appellant submitted medical evidence previously
of record.5
In a July 8, 2009 decision, the Office hearing representative found that appellant had not
established that she sustained a disabling emotional condition causally related to her employment
3

A copy of the offered position is not found in the record attached to either the December 14, 2006 employing
establishment job offer or the December 15, 2006 Office letter.
4

By decision dated March 25, 2008, the Office found that an overpayment in compensation in the amount of
$312.49 was created for the period October 21 through 29, 2005 because appellant was paid wage-loss
compensation after she returned to work.
5

Appellant submitted reports from Esther Monty, M.A., a licensed counselor. These reports do not constitute
probative medical evidence as there was no evidence of record establishing that Ms. Monty is a licensed clinical
psychologist, qualifying her as a physician as defined under the Act. See N.M., 60 ECAB ___ (Docket No. 08-2081,
issued September 8, 2009). Appellant also submitted reports from Drs. Michael Mrochek, Curtis Spier and
Manouchehr Refaeian who did not provide any opinion regarding her ability to work or whether she had an
employment-related emotional condition.

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and affirmed the February 12, 2007 decision terminating her compensation benefits on the
grounds that she refused an offer of suitable work.6
LEGAL PRECEDENT -- ISSUE 1
Section 8106(c) of the Federal Employees’ Compensation Act7 provides in pertinent part,
“A partially disabled employee who (2) refuses or neglects to work after suitable work is offered
... is not entitled to compensation.”8 It is the Office’s burden to terminate compensation under
section 8106(c) for refusing to accept suitable work or neglecting to perform suitable work.9 The
implementing regulations provides that an employee who refuses or neglects to work after
suitable work has been offered or secured for the employee has the burden of showing that such
refusal or failure to work was reasonable or justified and shall be provided with the opportunity
to make such a showing before entitlement to compensation is terminated.10 To justify
termination, the Office must show that the work offered was suitable and that appellant was
informed of the consequences of his refusal to accept such employment.11 In determining what
constitutes “suitable work” for a particular disabled employee, the Office considers the
employee’s current physical limitations, whether the work is available within the employee’s
demonstrated commuting area, the employee’s qualifications to perform such work, and other
relevant factors.12 Office procedures state that acceptable reasons for refusing an offered
position include withdrawal of the offer or medical evidence of inability to do the work or travel
to the job.13 Section 8106(c) will be narrowly construed as it serves as a penalty provision which
may bar an employee’s entitlement to compensation based on a refusal to accept a suitable offer
of employment.14 It is well established that the Office must consider preexisting and
subsequently acquired conditions in the evaluation of suitability of an offered position.15

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On April 14, 2009 the Office denied appellant’s claim for a schedule award. On July 7, 2009 an Office hearing
representative set aside the April 14, 2009 decision, finding that a conflict in the medical evidence existed regarding
permanent impairment and remanded the case to the Office for an impartial evaluation. This matter is not presently
before the Board as it is in an interlocutory posture. See 20 C.F.R. § 501.2(c)(2) (there will be no appeal with
respect to any interlocutory matter decided (or not decided) during the pendency of a case).
7

5 U.S.C. §§ 8101-8193.

8

Id. at § 8106(c).

9

Joyce M. Doll, 53 ECAB 790 (2002).

10

20 C.F.R. § 10.517(a).

11

Linda Hilton, 52 ECAB 476 (2001); Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB
818 (1992).
12

20 C.F.R. § 10.500(b); see Ozine J. Hagan, 55 ECAB 681 (2004).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.5.a(1) (July 1997); see Lorraine C. Hall, 51 ECAB 477 (2000).
14

Gloria G. Godfrey, 52 ECAB 486 (2001).

15

Richard P. Cortes, 56 ECAB 200 (2004).

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ANALYSIS -- ISSUE 1
The Board finds that the Office did not meet its burden of proof in terminating
appellant’s compensation. The Office failed to adequately review the job description or consider
her diagnosed preexisting bipolar disorder and subsequently acquired depression and PTSD in
finding the offered position suitable.
By letter dated December 14, 2006, the employing establishment offered appellant a
position as sector enforcement specialist and stated that a position description was attached.
While the cover letter contains some description of the position, including that there were
numerous deadlines and extensive overtime, with some travel and driving required, which
created a stressful environment, the letter also stated that the restrictions provided by Dr. Hood
would be honored, including a restriction of no driving. The December 15, 2006 letter in which
the Office informed appellant that the offered position was suitable also stated that a copy of the
position description was attached. However, a copy of the position description is not found in
the case record, neither attached to the employing establishment’s job offer dated December 14,
2006 or the Office’s December 15, 2006 notice letter.
Office procedures provide that any offer of modified duty must include a description of
the duties to be performed and include pay rate information.16 This information was not included
in the employer’s December 14, 2006 letter offering appellant the sector enforcement specialist
position. The procedures also provide that the physical requirements of the position and any
special demands of the workload or unusual working conditions must also be included.17 While
the December 14, 2006 letter stated that the offered position was in an office environment and
that Dr. Hood’s restrictions would be honored, it contained conflicting language regarding
whether driving was required. There is no evidence to show that the Office attempted to obtain a
description of the job duties or pay rate information for the offered position or to clarify whether
driving would be required. In fact, the cover letter was not submitted by the employing
establishment but rather by appellant was not of record until January 26, 2007, six weeks after
the Office’s notice letter finding the job suitable. There is no evidence that the Office contacted
the employing establishment to see if appellant reported for duty on February 5, 2007, the date
the employing establishment informed her that she should report for work. Appellant stated that
she reported for duty on February 5, 2007 but was told that she needed to provide additional
medical documentation before she could work. These procedural errors are sufficient to reverse
the Office’s determination that appellant refused an offer of suitable work.
Moreover, the Office failed to consider appellant’s emotional condition in evaluating the
suitability of the offered position.18 Appellant’s attending psychiatrist Dr. Katz had treated
appellant since 2002. He found in 2006 that she was totally disabled due to post-traumatic stress
disorder, bipolar disorder and depression. Dr. Borrego also found in 2006 appellant could not
work due to PTSD, bipolar disorder and depression. While the Office referral psychiatrist,
16

Federal (FECA) Procedure Manual, supra note 13 at Chapter 2.814.4.a(1)(a), 2.814.4.a(2) (July 1997).

17

Id. at Chapter 2.814.4.a(1)(b) (July 1997).

18

Richard P. Cortes, supra note 15.

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Dr. Chavez-Rice, opined that appellant’s emotional condition was not employment related, he
too advised that she was totally disabled and could not return to work until her bipolar disorder
was under control.
The fact that the Office had not accepted her emotional condition is not relevant to the
question of her disability for suitable work. It is well established that the Office must consider
preexisting and subsequently acquired conditions in the evaluation of suitability of an offered
position.19 It did not do so in this case. As a penalty provision, section 8106(c)(2) must be
narrowly construed.20 The Board therefore finds that for the foregoing reasons, the evidence
does not establish the suitability of the offered position, and the Office did not discharge its
burden of proof to justify the termination of appellant’s compensation pursuant to section
8106(c)(2) of the Act.21
LEGAL PRECEDENT -- ISSUE 2
To establish an emotional condition in the performance of duty, a claimant must submit
the following: (1) medical evidence establishing that he or she has an emotional or psychiatric
disorder; (2) factual evidence identifying employment factors or incidents alleged to have caused
or contributed to the condition; and (3) rationalized medical opinion evidence establishing that
the identified compensable employment factors are causally related to the emotional condition.22
It is an accepted principle of workers’ compensation law that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause which is attributable to the employee’s own intentional conduct.23
Regarding the range of compensable consequences of an employment-related injury, Larson
notes that, when the question is whether compensability should be extended to a subsequent
injury or aggravation related in some way to the primary injury, the rules that come into play are
essentially based upon the concepts of “direct and natural results” and of a claimant’s own
conduct as an independent intervening cause. The basic rule is that a subsequent injury, whether
an aggravation of the original injury or a new and distinct injury, is compensable if it is the direct
and natural result of a compensable primary injury. Thus, once the work-connected character of
any condition is established, the subsequent progression of that condition remains compensable
so long as the worsening is not shown to have been produced by an independent nonindustrial
cause.24

19

Id.

20

J.F., 60 ECAB ___ (Docket No. 08-439, issued October 24, 2008).

21

5 U.S.C. § 8106(c)(2); see R.B., 60 ECAB ___ (Docket No. 08-2154, issued May 8, 2009).

22

Ronald K. Jablanski, 56 ECAB 616 (2005).

23

Mary Poller, 55 ECAB 483 (2004).

24

A. Larson, The Law of Workers’ Compensation § 10.01 (November 2000).

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A claimant bears the burden of proof to establish a claim for a consequential injury.25 As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, showing causal relationship. Rationalized medical
evidence is evidence which relates a work incident or factors of employment to a claimant’s
condition, with stated reasons of a physician. The opinion must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship of
the diagnosed condition and the specific employment factors or employment injury.26
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, Larson notes that, when the question is whether compensability
should be extended to a subsequent injury or aggravation related in some way to the primary
injury, the rules that come into play are essentially based upon the concepts of direct and natural
results and of claimant’s own conduct as an independent intervening cause. The basic rule is that
a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is
compensable if it is the direct and natural result of a compensable primary injury.27
ANALYSIS -- ISSUE 2
The Board finds this case is not in posture for decision regarding whether appellant
established that she has an employment-related emotional condition due to a conflict in medical
evidence.
Appellant asserts that the injuries she sustained when she fell at work on April 27, 2004
aggravated her preexisting bipolar disorder, PTSD and depression. In reports beginning in
March 2006, Dr. Katz diagnosed PTSD, bipolar disorder and depression, caused by chronic pain
due to her employment injuries. He described her symptoms including suicidal ideation and
advised that she could not work or participate in a rehabilitation program due to the severity of
her symptoms. Dr. Borrego provided reports beginning in June 2006 in which he too diagnosed
PTSD, bipolar disorder, chronic pain and depression and advised that the conditions were
directly related to the employment injuries. He advised that appellant was treated both as an
inpatient and in an intensive outpatient program and could not work in any capacity due to these
conditions.
Dr. Chavez-Rice, an Office referral psychiatrist, provided a July 25, 2006 report in which
he noted a history that appellant was diagnosed with bipolar disorder prior to April 2002 and
provided findings on mental status examination. He diagnosed bipolar disorder Type 2, poorly
treated; borderline personality disorder; and depression and advised that appellant’s emotional
condition was not due to her federal employment and was not a consequence of the accepted
employment injuries. He stated that she could not return to her position as border patrol agent
unless her bipolar disorder was totally controlled and concluded that she was totally disabled due
to her psychiatric condition.
25

J.J., 60 ECAB ___ (Docket No. 09-27, issued February 10, 2009).

26

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

27

Supra note 24.

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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
shall appoint a third physician who shall make an examination.28 The Board finds that there is a
conflict of opinions between appellant’s attending psychiatrists, Dr. Katz and Dr. Borrego, and
that of Dr. Chavez-Rice, an Office referral physician, regarding whether appellant’s emotional
condition is causally related to the April 27, 2004 employment injury. The case will be
remanded to an impartial medical specialist to resolve the conflict.29 On remand the Office shall
provide the impartial specialist as with a statement of accepted facts and the medical record.
Following such other development as deemed necessary, the Office shall issue an appropriate
decision on the issue of whether appellant’s diagnosed emotional condition is causally related to
the April 27, 2004 employment injury.
CONCLUSION
The Board finds that the Office did not meet its burden of proof to establish that appellant
refused an offer of suitable work. The case is not in posture for decision regarding whether she
has an emotional condition causally related to the April 27, 2004 employment injury.

28

5 U.S.C. § 8123(a).

29

M.S., 58 ECAB 328 (2007).

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ORDER
IT IS HEREBY ORDERED THAT the July 8, 2009 decision of the Office of Workers’
Compensation Programs be reversed in part and set aside in part and the case remanded to the
Office for proceedings consistent with this opinion of the Board.
Issued: September 20, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

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Appearances:
Earnest Hill, for the appellant
Office of Solicitor, for the Director

Docket No. 07-224
Issued: July 23, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 31, 2006 appellant filed a timely appeal from the October 19, 2006 decision
of the Office of Workers’ Compensation Programs to rescind acceptance of his claim. 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 the Office met its burden of proof to rescind acceptance of
appellant’s claim.
FACTUAL HISTORY
On December 13, 2005 appellant, then a 57-year-old customer service supervisor, filed a
traumatic injury claim, Form CA-1, alleging that he dislocated his shoulder and sustained back
and neck injuries on December 10, 2005 when a shelf fell on him. He stated that he was “sitting
[and] bending over filing papers” when a six-foot tall and eight-foot long shelf fell on top of him.
Postmaster Elias Olvera, appellant’s supervisor, controverted his claim on the grounds
that fact of injury was in question. He stated that the day before the alleged injury he confronted

appellant with complaints about his timekeeping practices that had been raised by his
subordinates and informed appellant that he should not conduct timekeeping until further notice.
Mr. Olvera then instructed appellant to report to work the following day, which he was not
scheduled to work, to instruct another supervisor, Brian Boxie, on conducting timekeeping for
rural letter carriers. At 11:28 a.m. the following day he received a call from Mr. Boxie
informing him that a shelf in the basement had fallen on appellant. When Mr. Olvera arrived at
the employing establishment at 11:55 a.m., appellant was being placed in an ambulance.
Mr. Boxie told him that appellant had gone down to the basement to file two weeks worth of
“blue folders.” He had been downstairs for approximately 45 minutes when he called Mr. Boxie
from his cell phone to tell him that a shelf had fallen on him. Mr. Boxie found appellant in the
file room with a shelf partially covering his legs and with the assistance of another employee, he
removed the shelf. When he complained of shoulder pain, an ambulance was called. After
appellant was taken to the hospital, Mr. Olvera took photographs of the file room and had
Mr. Boxie lie down to show him how appellant was found. Mr. Olvera questioned appellant
about the accident by telephone on Monday, December 12, 2005. Appellant told him he was
sitting in a chair and filing the blue folders in chronological order when he heard a crackle and
the shelf fell on him before he could get out of the way. Mr. Olvera noted that there were no
blue folders on the floor to corroborate appellant’s statement.
On December 10, 2005 emergency room physician Dr. Karen Richardson, a Boardcertified family practitioner, diagnosed neck and back contusions, prescribed pain medication
and instructed appellant to visit his physician within two to three days. She removed him from
work until he was released by his physician. On December 19, 2005 appellant’s physician,
Dr. Joseph Valdez, a Board-certified family practitioner, removed him from work until at least
January 27, 2006.
On January 5, 2006 the Office informed appellant that he had not submitted sufficient
evidence to establish that the alleged incident occurred or that it had caused the claimed injuries.
Appellant responded on January 18, 2006 with a written statement and medical reports from
Dr. Valdez. He stated that he was in the basement to file two weeks of folders into a storage
crate. Appellant heard a noise and realized the shelf was falling. He tried to hold the shelf up,
but could not because he was in a seated position and could only grab it three quarters of the way
down. Appellant stated that he was pinned under the shelf, which had partially dislocated his
shoulder as it fell on him and he could not get up. He called for help and two employees came to
lift the shelf off of him and remove some of the objects that had fallen on him. In response to
questions by the Office, appellant stated that he had previously dislocated his shoulder in 1967
and had undergone a surgery to correct it at that time, but had no history of back or neck injuries.
In a December 15, 2005 report, Dr. Valdez stated that appellant was hit on the left side of
his head, shoulders and back by a shelf full of books and papers that trapped him for several
minutes. Appellant was placed in a neck brace and transported to the emergency room where
diagnostic images of his cervical spine revealed no evidence of neck fracture. Dr. Valdez found
that appellant had pain and reduced range of motion in his left shoulder and lumbar spine and
had pain and spasms in the flanks bilaterally and paravertebral musculature of the lumbar spine.
He diagnosed cervicolumbar sprain, left acromioclavicular (AC) joint sprain and left shoulder
contusion. On December 23, 2005 Dr. Valdez reported that appellant was experiencing constant
moderately severe low back pain that was aggravated by repetitive bending and forward flexion.

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He stated that appellant’s left shoulder had been in pain with movement since he dislocated it
and maneuvered it back into position during the accident. Dr. Valdez updated his diagnosis to
sprain on the left shoulder and lumbar areas.
The Office also received the ambulance crew’s emergency medical service care report,
which indicated that appellant reported pain and tenderness in his upper back, neck and left arm
when they arrived at the employing establishment on December 10, 2005. The report stated that
appellant was sitting on a rolling chair with his back to the shelves when they collapsed,
impacting his upper back, causing him to fall and pinning his legs. When the ambulance crew
arrived, he was lying supine on the floor. Appellant told them that he had not lost consciousness.
He was placed on a spine board and fitted with a cervical collar for transportation to the
emergency room.
By decision dated February 10, 2006, the Office accepted appellant’s claim for
strains/sprains of the neck, lumbar region and left shoulder.
On February 15, 2006 the employing establishment submitted the report of an
investigation into the allegations that appellant had fraudulently adjusted employee work hours
to avoid payment of overtime and that he staged the accident that resulted in his claimed injuries.
Mr. Olvera requested the investigation because he believed that appellant feared losing his job
over the fraudulent timekeeping allegations and had staged that accident to obtain workers’
compensation benefits. The investigators concluded that appellant had made “numerous
adjustments to reduce reported hours of several employees” and that the “physical evidence at
the scene of [appellant’s] reported accident on December 10, 2005 contradicted his account of
what happened.”
In a December 12, 2005 sworn statement, Mr. Boxie stated that on the day of the accident
appellant arrived at the employing establishment at approximately 8:30 a.m. to teach him how to
do rural letter carrier time reports. He was busy with other activities when appellant arrived and
did not see him again until 9:30 a.m., when he began using the computer on the workroom floor
to enter rural time. Because Mr. Boxie needed to use the computer to finish his daily reports, he
told appellant to log off and informed him that he would need to return in two weeks to train him
on the entire rural timekeeping process. At 10:30 a.m. appellant told Mr. Boxie that he was
going to the basement to file the blue daily folders for the previous two weeks and go through
some records. At approximately 11:20 a.m. he used his cell phone to call the office telephone
and told Mr. Boxie that he was hurt and needed help. Mr. Boxie found him on the floor at the far
end of the basement storage room with his feet underneath the fallen shelf and his head toward
the door. He noted that appellant was lying on top of records that were strewn all over the floor
and complaining of pain in his shoulder and back. Mr. Boxie pushed the shelf off of appellant’s
leg and moved some of the papers to the side. He called Mr. Olvera and an ambulance and had
another employee stay with appellant until it arrived.
On December 12, 2005 the investigators examined the basement storage room where
appellant was found. They noted that Mr. Boxie told them that he had not moved anything since
the accident. The investigators found blue folders dated November 22 to December 9, 2005
sitting on a chair in the hallway outside of the storage room and noted that a large cardboard box
between the door and the fallen shelving unit contained older blue folders. They stated that it

3

would have taken only a few minutes to place the more recent blue folders in the storage box, not
the 45 minutes that appellant was downstairs. The investigators noted that only the end of the
shelving unit closest to the doorway had fallen because the back end was wedged against another
storage unit. They found that the plastic tubs and boxes which were previously on top of the
shelf had fallen backwards against the wall. The investigators stated that, if the shelf had
collapsed the way appellant alleged, the items on the top shelf would have slid toward the end
that fell. They found that the boxes’ actual location suggested that the top shelf had moved
suddenly away from the wall. The bottom two shelves were positioned in front of the shelving
unit rather than being flattened underneath the upper shelves as they fell. Handprints found on
the edges of the shelves indicated that they might have been intentionally pulled forward. The
investigators found that files were scattered haphazardly on the floor and not in a pattern that
would be expected if they spilled from falling boxes and tubs. They stated that appellant’s
location, with his feet under the bottom shelf near the back of the room, was not consistent with
his statement that he was filing into the storage box, which was closer to the doorway. The
investigators found that these facts indicated that documents from the shelf were intentionally
spread on the floor before appellant lay on them.
On January 4, 2006 the investigators interviewed appellant. They reported that he told
them that he filed records in the basement two to three times a week. On the day of the accident,
appellant was sitting bent over on a rolling chair filing into a box that was a quarter of the way
into the room. He stated that he had been there for 10 to 15 minutes when the shelves, which
were filled with old records, auto parts and other items, collapsed on him. Appellant told them it
happened before he could move and that he did not remember what happened after that. He
stated that he could not move because the shelf was covering him, but did not remember the
position in which he was lying on the floor after they fell. When asked why his finger prints
would be on the edge of the shelf, he replied that they could be all over the employing
establishment.
The investigators provided the reports from x-rays and a computerized tomography scan
conducted at the hospital on the day of the accident. These diagnostic tests revealed varying
degrees of degenerative changes throughout the spine and left shoulder, but provided no
evidence of acute fracture, subluxation or prevertebral soft-tissue swelling. Dr. Jeffrey Zatorski
reviewed these reports on December 10, 2005 and found that they presented no evidence of acute
findings or active disease.
On March 15, 2006 Dr. Valdez reported that appellant continued to experience
moderately severe pain in the left shoulder and low back. He stated that magnetic resonance
imaging (MRI) scans conducted on March 9, 2006 revealed disc bulges at L4-5, L3-4 and L5-S1
and tears of the posterior and anterior labial quadrants of the left shoulder, with mild to moderate
synovitis and edema.
By decision dated April 10, 2006, the Office rescinded acceptance of appellant’s claim on
the ground that the prior acceptance was erroneous. It found that the investigative report
conducted by the employing establishment successfully controverted appellant’s version of the
facts surrounding his alleged injury.

4

The Office subsequently received a March 27, 2006 report from Dr. Victor Van Phan, a
Board-certified osteopathic orthopedic surgeon, regarding appellant’s left shoulder condition.
He noted that the left shoulder had significant loss of motion, significant crepitus with passive
range of motion and some tenderness along the anterior shoulder joint and AC joint. Dr. Phan
reviewed appellant’s March 9, 2006 MRI scan and found that it showed degenerative changes of
the glenohumeral joint and the posterior and anterior labrums, mild edema changes and
osteophyte formation on the glenoid. He opined that appellant’s shoulder pain was caused by
significant degenerative changes that may have been exacerbated by the December 10, 2005
accident.
On March 27, 2006 appellant was also seen by Dr. Jeremy Wang, a neurosurgeon, for a
low back pain consultation. He reported that his back pain began at the time of the accident and
had not improved. On examination Dr. Wang found pain with facet loading maneuvers,
tenderness over the facets at L4-5 and bilateral paraspinal muscle spasms. He reviewed the
March 9, 2006 lumbar MRI scan and noted desiccation at the L4-5 interspace, stenosis with
lateral recess stenosis and facet arthropathy at L4-5 and a left T12-L1 epidural, which may be fat.
After reviewing the diagnostic reports and conducting a physical examination, Dr. Wang could
not determine whether the cause of the lower back pain was lumbar myofascial pain syndrome,
facet arthropathy or lumbar strain.
On April 26, 2006 appellant requested an oral hearing. He contended that the postal
inspector’s findings were “completely wrong.” Appellant stated that, at the time of the accident,
he was sitting about two feet from the shelf. When the shelf hit him, he heard his shoulder pop.
Appellant then grabbed onto it and heard it pop again. He stated that the shelf was on him “from
the waist up,” and that he could not move it because it was too heavy and his neck, back and
shoulder were in pain.1 When Mr. Boxie arrived to help him, he removed some debris from off
of appellant and attempted to lift the shelf, but, finding it too heavy, was required to get another
coworker to help him. Appellant stated that his coworkers moved the shelf and debris enough to
relieve the weight and that the emergency response personnel finished removing the shelf and
then transported him to the hospital.
By decision dated August 4, 2006, the Office hearing representative reversed the Office’s
April 10, 2006 decision, finding that the case was “not in a posture for hearing as the Office
failed to accord due process in rescinding the accepted claim.” He noted that the Office did not
provide proper notice of the proposed rescission before terminating appellant’s benefits on
April 10, 2006.
On August 24, 2006 the Office issued a notice of proposed termination on the grounds
that the evidence submitted by the employing establishment successfully disputed his claimed
facts of injury. It found that the evidence in the record established that appellant had been found
lying on his back with the shelf covering only his lower leg and knees. The Office noted that the
dispersal of the objects fallen from the shelves was not consistent with appellant’s version of
events and pointed instead to the shelf being abruptly moved. Appellant was given 30 days to
submit additional evidence and arguments. He did not respond in the allotted time.
1

The Board notes that appellant previously alleged that his lower extremities were under the shelf, not his torso
and upper extremities.

5

By decision dated October 19, 2006, the Office finalized its rescission of acceptance of
appellant’s claim.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying the termination or
modification of compensation benefits. This holds true where, as here, the Office later decides
that it erroneously accepted a claim.2 The Office’s regulation on rescission states: “If the
Director determines that a review of the award is warranted (including, but not limited to
circumstances indicating a mistake of fact or law or changed conditions), the Director (at any
time …) may modify, rescind, decrease or increase compensation previously awarded, or award
compensation previously denied.”3 The Board has held that the power to annul an award of
compensation is not an arbitrary one and only be set aside in the manner provided by the
compensation statute.4
An employee has the burden of establishing the occurrence of an injury at the time, place
and in the manner alleged, by the preponderance of the reliable, probative and substantial
evidence. An injury does not have to be confirmed by eyewitnesses in order to establish the fact
that the employee sustained an injury in the performance of duty, but the employee’s statements
must be consistent with the surrounding facts and circumstances and his subsequent course of
action. An employee has not met his burden of proof when there are such inconsistencies in the
evidence as to cast serious doubt upon the validity of the claim.5 An employee’s statement
alleging that an injury occurred at a given time and in a given manner is of great probative value
and will stand unless refuted by strong or persuasive evidence.6
ANALYSIS
On February 10, 2006 the Office accepted appellant’s traumatic injury claim for sprains
of the neck, lumbar region and left shoulder. On October 19, 2006 the Office rescinded
acceptance of his claim on the basis that the evidence established that the injuries did not occur
in the manner alleged. To meet its burden of proof to rescind in this case, the Office must
establish that the previously accepted incident did not occur as alleged.7
The Board finds that the Office met its burden of proof to establish that the December 10,
2005 incident did not occur as alleged. Appellant alleged that he sustained injury when a
2

Alfonso Martinisi, 33 ECAB 841 (1982); Jack W. West, 30 ECAB 909 (1979).

3

20 C.F.R. § 10.610.

4

Linda L. Newbrough, 52 ECAB 323 (2001) (“[t]o justify rescission of acceptance, the Office must establish that
its prior acceptance was erroneous based on new or different evidence or through new legal argument and/or
rationale”).
5

Joseph A. Fournier, 35 ECAB 1175 (1984).

6

Caroline Thomas, 51 ECAB 451 (2000).

7

See Deborah S. Stein, 56 ECAB __ (Docket No. 04-750, issued April 26, 2005).

6

basement shelf collapsed on him while he was sitting in a chair and filing folders. While
employee statements regarding alleged injuries are generally entitled to great probative value, the
Board finds that appellant’s statements were refuted by probative evidence and were not
consistent with the surrounding facts and circumstances.
Appellant alleged that on December 10, 2005 he went to the basement to file two weeks
worth of blue folders into a crate and that he had been filing for 10 to 15 minutes when the
shelves behind him collapsed on him. This statement is inconsistent with the sworn statement of
Mr. Boxie, who stated that appellant was in the basement for 45 minutes. According to
Mr. Boxie, appellant had informed him at 10:30 a.m. that he was going to file blue folders in the
basement but did not call asking for help until 11:20 a.m. Appellant’s statement is also
inconsistent with the sworn statement of Mr. Olvera, who noted that no blue folders were on the
floor of the storage room after the accident. Additionally, his version of events is inconsistent
with the fact that two weeks worth of blue folders, from November 22 to December 9, 2005,
were found on a chair outside of the storage room.
Appellant alleged that the falling shelf hit his neck, back and left shoulder as it fell and
that he was covered by the shelf from the waist down. He stated that he was unable to move the
shelves or get free of them because of their weight and his injuries. When Mr. Boxie found
appellant, he was lying face up on the floor with the shelves covering only the lower part of his
legs. Appellant told the ambulance crew that he had not lost consciousness, but told the
investigators that he could not remember what happened after the shelf fell on him or how he
was lying on the ground. While he was diagnosed with contusions of the neck and back on
December 10, 2005, his statements regarding the alleged incident were inconsistent enough to
cast serious doubt on the validity of his claim. The Board, therefore, finds that appellant’s
statements are not entitled to great probative value.
The Board finds that the evidence presented by the employing establishment is sufficient
to establish that the incident did not occur as alleged. In rescinding acceptance of the claim, the
Office relied on the facts and analysis found in a report from the employing establishment dated
February 15, 2006, which documented the physical condition of the room following the accident
and contained the sworn statement of appellant’s coworker.
The investigators from the employing establishment examined the basement storage room
the Monday after the alleged accident. Mr. Boxie informed them that he had not moved anything
in the room following the accident. The investigators found that only one side of the shelving
unit had fallen because the other side was wedged against another storage unit. They found that
the files and items on the floor were scattered in a haphazard manner and were not in a pattern
that was consistent with falling from a shelf. The investigators stated that the position in which
appellant was found, with his feet under the bottom shelf near the back of the room, was not
consistent with his statement that he was filing into the storage box, which was closer to the
doorway. They also noted that Mr. Boxie stated that appellant was lying on top of files and
papers from the shelf. The investigators found that these facts indicated that documents from the
shelf were intentionally spread on the floor before appellant lay on them.
The investigators also found evidence that the shelves had been intentionally pulled
forward rather than collapsing, as appellant had alleged. They noted that boxes that were on the

7

top of the shelves had fallen backwards against the wall, which was evidence that the top of the
shelf had moved quickly away from the wall. The investigators stated that if the shelf had
collapsed, the boxes would have slid down toward the side of the shelf that came away from the
wall. They noted that the bottom shelves were not crushed by the falling upper shelves, but were
positioned in front of them. The investigators also found handprints on the shelf that were
consistent with the shelf being pulled away from the wall.
The Board finds that the record contains substantial and probative positive evidence
confirming that the December 10, 2005 injury did not occur as alleged.
CONCLUSION
The Board finds that the Office met its burden of proof to rescind its acceptance of
appellant’s claim.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 19, 2006 is affirmed.
Issued: July 23, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Coatesville, PA, Employer
__________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 07-1492
Issued: November 6, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 8, 2007 appellant filed a timely appeal from a November 6, 2006 decision of the
Office of Workers’ Compensation Programs, adjudicating her 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 the
appeal.
ISSUE
The issue is whether appellant has more than a two percent impairment of her right hand.

FACTUAL HISTORY
This is the second appeal in this case.1 By decision dated September 14, 2005, the Board
set aside a February 9, 2005 Office decision and remanded the case for further development of
the medical evidence. The history of the case is contained in the Board’s prior decision and is
incorporated herein by reference.
On December 13, 2005 the Office referred appellant, together with a statement of
accepted facts and a list of questions, to Dr. Robert Draper, a Board-certified orthopedic surgeon,
for an impairment rating of her right hand. The statement of accepted facts provided to
Dr. Draper failed to include the fact that the Office had accepted trigger finger of appellant’s
right little finger, in addition to her right ring finger.
In a December 29, 2005 report, Dr. Draper reviewed appellant’s medical history and
provided findings on physical examination. He diagnosed tenosynovitis of the right ring finger
and little finger, status post release of the right ring finger for trigger finger in 1988 and status
post release of the right little finger for trigger finger in 1989. Dr. Draper noted appellant’s
statement that the Office had accepted trigger finger of her right little finger, in addition to
trigger finger of her right ring finger “but I don’t have proof of that.” He stated:
“Examination of the right hand reveals that [appellant] has very well-healed
incisions over the hand involving the ring finger and the little finger of the right
hand…. Tinel’s sign is negative over the median and ulnar nerve of the right
wrist and right elbow. Normal light touch sensation is noted over the index finger
and the little finger of the right hand. The grip strength is +5/5 to the right hand.
There is triggering of the fingers today. There are nodules present over the flexor
tendons for the ring finger and the little finger which can be palpated in the palm
of the right hand without triggering.”
***
“I did not really find any loss of strength, atrophy, ankylosis or sensory changes at
all in the right hand. The subjective complaints were of discomfort in the right
hand.”
Dr. Draper found that appellant had a 10 percent permanent impairment of her right ring finger
or a 2 percent impairment of the right upper extremity, based on Table 16-29, (Digit Impairment
Due to Constrictive Tenosynovitis, (trigger fingers) at page 507 of the fifth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment.2 Dr. Draper
noted that appellant had less than a mild inconsistent triggering during active range of motion.
On March 16, 2006 Dr. Morley Slutsky, an Office medical adviser, reviewed Dr. Draper’s
1

See Docket No. 05-1388 (issued September 14, 2005). On August 22, 1988 appellant, then a 56-year-old
nursing assistant, sustained trigger finger of her right ring finger when she lifted a bag of laundry. She underwent a
trigger finger release of the right ring finger on December 13, 1988. The Office subsequently accepted trigger finger
of appellant’s right little finger.
2

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

2

December 29, 2005 report and agreed with his assessment that appellant had a two percent
impairment of her right hand.
By decision dated March 20, 2006, the Office denied appellant’s claim for an additional
schedule award. The Office stated that the December 29, 2005 report from Dr. Draper
established that appellant had no more than a two percent impairment of her right hand for which
she had previously received a schedule award.
On March 21, 2006 appellant requested an oral hearing that was held on July 31, 2006.
By decision dated November 6, 2006, the Office hearing representative affirmed the March 20,
2006 decision.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulations4 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.5
It is well established that, in determining the amount of a schedule award for a member of
the body that sustained an employment-related permanent impairment, the percentage of
impairment should include those conditions accepted by the Office as job related and any
preexisting permanent impairment of the same member or function.6
ANALYSIS
Dr. Draper diagnosed tenosynovitis of appellant’s right ring and little fingers, status post
release of the right ring finger for trigger finger in 1988 and status post release of the right little
finger for trigger finger in 1989. He found that appellant had a 10 percent permanent impairment
of her right ring finger, or a 2 percent impairment of her right upper extremity, based on
Table 16-29 at page 507 of the A.M.A., Guides. Dr. Draper noted appellant’s statement that the
Office had accepted the condition of trigger finger of her right little finger, in addition to trigger
finger of her right ring finger but he stated, “I do n[o]t have proof of that.” The statement of
accepted facts provided to him failed to mention that the Office had accepted trigger finger of
appellant’s right little finger. The Board finds that Dr. Draper’s impairment rating of her right
hand is not based on a complete and accurate factual background. Because he did not consider
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

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

6

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3(a)(3) (October 1990).

3

appellant’s trigger finger of her right little finger in his impairment rating his report is not
sufficient to establish the extent of her right hand impairment.
On remand the Office should refer appellant for an examination and evaluation of her
right hand permanent impairment, with reference to applicable sections of the A.M.A., Guides,
fifth edition. After such further development as it deems necessary, the Office should issue an
appropriate decision.
CONCLUSION
The Board finds that this case is not in posture for a decision. The case will be remanded
for further development of the medical evidence.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 6, 2006 is set aside and the case remanded for further
action consistent with this decision.
Issued: November 6, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.S., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
WEAPONS STATION, Goose Creek, SC,
Employer
__________________________________________

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

Docket No. 10-2262
Issued: August 11, 2011

Case Submitted on the Record

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

JURISDICTION
On September 8, 2010 appellant filed a timely appeal from the March 17 and April 2,
2010 decisions of the Office of Workers’ Compensation Programs (OWCP) finding an
overpayment of compensation, denying waiver of recovery of the overpayment and making
deductions from his continuing compensation payments. 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 found that appellant received overpayments
in the amount of $1,419.52, resulting from no deduction of health and life insurance premiums
and $486.75, resulting from an incorrect pay rate; (2) whether OWCP properly denied waiver of
the recovery of the overpayments; and (3) whether OWCP properly directed recovery of the
overpayments from appellant’s continuing compensation payments.
1

5 U.S.C. § 8101 et seq.

On appeal, appellant contends that his health insurance was not reinstated until
January 2010 even though he had been approved for compensation in May 2009 and that he
could not afford COBRA insurance. He contends that he should not have to repay the
overpayment as he was not at fault and it caused a financial hardship.2
FACTUAL HISTORY
On May 18, 2004 appellant, then a 54-year-old materials handling inspector, filed a claim
for a traumatic injury alleging that, on May 10, 2004, he was a passenger in a government van
when it was in a motor vehicle accident. On June 24, 2004 OWCP accepted his claim for a
contusions of the back, left scapular region, right elbow and forearm and multiple sites of the
right upper limb and right knee. On November 5, 2004 it accepted appellant’s claim for right
knee medial meniscus tear. On November 9, 2004 appellant underwent a right knee arthroscopy
with partial medial meniscectomy. He resumed regular work duties on November 22, 2004. On
May 6, 2009 OWCP accepted appellant’s claim for post-traumatic stress disorder and major
depression (single episode). It paid wage-loss compensation and medical benefits.
On June 21, 2008 the employing establishment terminated appellant due to his inability to
perform the duties of his position. It noted that he was entitled to severance pay for a 52-week
period beginning June 22, 2008.
By letter dated October 1, 2009, OWCP informed appellant that he would be paid
compensation at the augmented 75 percent rate of $1,087.25 a week.3 Appellant’s first payment
for the period September 27 through October 24, 2009 would be in the amount of $3,261.75 and
that $0.00 would be deducted for health benefits, basic life insurance and optional life insurance.
By letter dated January 15, 2010, OWCP asked the employer to provide information with
regard to appellant’s health and life insurance benefits and deductions made by the employing
establishment. It also asked for his pay rate effective November 10, 2007. In a February 1, 2010
memorandum, Yolanda Cardenas of the employing establishment, noted that appellant had basic
life insurance (code E1) plus optional life insurance (1X). Appellant’s code for health insurance
was 105 and his pay rate as of November 10, 2007 was $27.09 an hour. In a leave and earnings
statement for the pay date of July 11, 2008, the employer indicated that deductions were made
for optional life insurance in the amount of $13.05, life insurance (E1) for $78.30 and for health
insurance (code 105) of $1,295.42.
In a form dated February 4, 2010, OWCP noted that deductions should have been taken
from appellant’s compensation for HBI code 105 from September 27, 2009 through January 16,
2010 in the amount of $1,337.12. Deductions should also have been made for this period in the
amount of $70.80 for basic life insurance and that a deduction should have been made for $11.60
for E1 optional life insurance. OWCP then determined that this resulted in a net difference of
$1,419.52 ($1,337.12 plus $70.80 plus $11.60).
2

Appellant submitted additional evidence after OWCP’s April 2, 2010 decision, but the Board cannot consider
such evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1).
3

A payment plate indicated that this amount reflected the date appellant’s disability began.

2

On February 4, 2010 OWCP made a preliminary determination that appellant had been
overpaid benefits in the amount of $1,419.52 because it did not deduct health premiums and life
insurance premiums for the period September 27, 2009 through January 16, 2010. It determined
that deductions should have been made for health premium code 105, basic life insurance and
optional life insurance premium Code E1. OWCP recommended that appellant be found without
fault in the creation of the overpayment and sent him an overpayment recovery questionnaire.
On February 23, 2010 OWCP made a preliminary determination that appellant received
an overpayment of compensation in the amount of $486.75 because he was paid compensation at
an incorrect rate from September 27, 2009 through February 13, 2010. It determined that he was
paid $16,308.75 for the period September 27, 2009 through February 13, 2010, whereas he
should have been paid compensation in the amount of $15,822.00, resulting in an overpayment
of $486.75. OWCP made a recommendation that appellant be found without fault in the creation
of the overpayment and sent him an overpayment recovery questionnaire. In a manual
adjustment form, it indicated that the pay rate should have been 75 percent of $1,054.80 effective
June 22, 2008, reflecting the date of recurrence of disability. Appellant was advised of his right
to submit evidence related to the overpayment.
By decision dated March 17, 2010, OWCP finalized its February 4, 2010 preliminary
determination that appellant received an overpayment of $1,419.52. It further found that,
although he was without fault in the creation of the overpayment, as he had not demonstrated
that recovery would defeat the purpose of FECA or be against equity and good conscience, the
entire overpayment would be collected by deducting $277.37 from continuing compensation
payments.
By decision dated April 2, 2010, OWCP finalized its February 23, 2010 preliminary
overpayment determination that appellant received an overpayment in the amount of $486.75
and found that the overpayment would be collected by deducting $162.25 from future
compensation payments as appellant had not demonstrated that recovery would either defeat the
purpose of FECA or be against equity and good conscience.
LEGAL PRECEDENT -- ISSUE 1
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.4
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.5
Under the Federal Employees’ Group Life Insurance Program (FEGLI), most civilian
employees of the Federal Government are eligible to participate in basic life insurance and one

4

5 U.S.C. § 8102(a).

5

Id. at § 8129(a).

3

or more of the options.6 The coverage for basic life insurance is effective unless waived7 and the
premiums for basic and optional life insurance coverage are withheld from the employee’s pay.8
While the employee is receiving compensation under FECA, deductions for insurance are
withheld from the employee’s compensation.9 At separation from the employing establishment,
the FEGLI insurance will either terminate to be continued under compensationer status. If the
compensationer chooses to continue basic and optional life insurance coverage, the schedule of
deduction made will be used to withhold premiums form his overcompensation payments.10
When an underwithholding of life insurance premiums occurs, the entire amount is deemed an
overpayment of compensation because OWCP must pay the full premium to OPM upon
discovery of the error.11 Furthermore, the Board has also recognized that, when an
underwithholding of health insurance premiums is discovered, the entire amount is deemed an
overpayment of compensation because OWCP must pay the full premium to OPM when the
error is discovered.12
Section 8101(4) of FECA defines monthly pay for compensation purposes as follows:
“‘[M]onthly pay’ means the monthly pay at the time of injury or the monthly pay
at the time disability begins or the monthly pay at the time compensable disability
recurs, if the recurrence begins more than [six] months after the injured employee
resumes full-time employment with the United States, whichever is greater,
except when otherwise determined under section 8113 of this title with respect to
any period.”13
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $1,419.52 for the period September 27, 2009 through January 16, 2010. The record reflects
that he was enrolled in health insurance, code 105 and that deductions should have been taken
from his compensation payments during this period in the amount of $1,337.12. The record also
shows that deductions should have been made for basic life insurance in the amount of $70.80
and for optional life insurance in the amount of $11.60. Therefore, an overpayment was created
as OWCP did not deduct premiums for health and life insurance benefits that appellant had
elected. The Board finds that appellant received a $1,419.52 overpayment due to the failure to
6

Id. at § 8702(a).

7

Id. at § 8702(b).

8

Id. at § 8707.

9

Id. at § 8707(b)(1).

10

Id. at § 8706(b).

11

Id. at § 8707(d).

12

S.R., Docket No. 10-794 (issued December 15, 2010).

13

5 U.S.C. § 8101(4).

4

deduct the proper life and health insurance premiums for the period September 27 through
January 16, 2010.
The Board further finds that appellant received an overpayment in the amount of
$486.75, because he was paid an incorrect rate of compensation for the period September 27,
2009 through February 13, 2010. Appellant was paid compensation for this period of time based
on 75 percent of a weekly rate of pay of $1,087.25, based on payment of $16,308.75. However,
OWCP later determined that he should have been paid based on 75 percent of a weekly pay rate
of $1,054.80, based on payment of $15,822.00. The amount of $1,054.80 represented the date
recurrence of disability began. Appellant returned to regular work following the May 10, 2004
employment injury and was terminated due to his inability to perform his duties effective
June 21, 2008. His severance pay began June 22, 2008. The rate of pay effective June 22, 2008
was $1,054.80, the date the recurrence began.14 This resulted in an overpayment of $486.75 and
OWCP properly determined in its April 2, 2010 decision that this resulted in an overpayment.
LEGAL PRECEDENT -- ISSUE 2
When an overpayment of compensation has been made because of an error of factor law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which an individual is entitled.15 OWCP may consider waiving an
overpayment only if the individual to whom it was made was not at fault in accepting or creating
an overpayment.16
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by OWCP. This information is needed to
determine whether an overpayment should be waived. This information will also be used to
determine the repayment schedule, if necessary. Failure to submit the requested information
within 30 days of the request shall result in denial of waiver and no further request for waiver
shall be considered until the requested information is furnished.17
ANALYSIS -- ISSUE 2
When OWCP issued its preliminary determinations with regard to overpayment on
February 4 and 23, 2010, it asked appellant to complete an overpayment recovery questionnaire
and attach supporting financial documentation. It explained the consequences of failing to do so.
Because appellant failed to submit the requested information within 30 days, OWCP had no
discretion in the matter; the law required a denial of waiver. The Board will therefore affirm the
decisions on the issue of waiver.

14

Id.

15

5 U.S.C. § 8129(a).

16

20 C.F.R. § 10.433(a).

17

Id. at § 10.438.

5

Appellant argues that he was not at fault in the creation of the overpayment and he is
correct. However, that does not mean he gets to keep money that does not belong to him.18
OWCP could waive the overpayment if appellant’s financial circumstances qualify. It cannot
make that determination without the information requested by the overpayment questionnaire.
LEGAL PRECEDENT -- ISSUE 3
When an overpayment has been made to an individual who is entitled to further
payments, proper adjustment shall be made by decreasing subsequent payments of compensation
having due regard to the probable extent of future payments, the rate of compensation, the
financial circumstances of the individual and any other relevant factors, so as to minimize any
resulting hardship upon such individual.19
ANALYSIS -- ISSUE 3
OWCP directed recovery of the overpayment of the $1,419.52 overpayment by deducting
$277.37 from each of appellant’s continuing compensation payments. It directed recovery of the
overpayment of $486.75 by collecting $162.25 from future compensation payments.
The Boards finds that OWCP properly directed recovery of the overpayment at this rate
from appellant’s continuing compensation. As noted, appellant failed to submit an overpayment
recovery questionnaire or any other financial information that OWCP requested prior to the final
overpayment decisions. The overpaid individual is responsible for providing information about
income, expenses and assets as specified by OWCP.20 When an individual fails to provide
requested financial information, OWCP should follow minimum collection guidelines designed
to collect the debt promptly and in full.21 Because appellant did not submit the requested
financial information there is no evidence of record to establish that OWCP erred by directing
recovery of $277.37 plus $162.25 from future compensation payments until the overpayment
was repaid.
CONCLUSION
The Board finds that OWCP properly found that appellant received overpayments in the
amount of $1,419.52 and $486.75. The Board further finds that OWCP properly denied waiver
of recovery of the overpayments and properly set forth the terms for collecting these
overpayments from his continuing compensation payments.

18

P.R., Docket No. 10-1244 (issued January 4, 2011).

19

20 C.F.R. § 10.441(a); see Steven R. Cofrancesco, 57 ECAB 62 (2006).

20

Id.

21

Frederick Arters, 53 ECAB 397 (2002); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial
Overpayment Actions, Chapter 6.200.4(c)(2) (September 1994).

6

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 2 and March 17, 2010 are affirmed.
Issued: August 11, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 08-1778
Issued: March 11, 2009

Case Submitted on the Record

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

JURISDICTION
On June 10, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs March 5, 2008 decision of a hearing representative regarding
appellant’s schedule award claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has more than nine percent permanent impairment of both
the right and left upper extremity, for which he received a schedule award.
FACTUAL HISTORY
On May 12, 2004 appellant, then a 49-year-old letter carrier filed a traumatic injury claim
alleging that on April 29, 2004, while delivering mail, he slipped and fell on his back injuring his

left foot, back, neck, shoulders and left knee.1 The Office accepted appellant’s claim for cervical
strain and bilateral shoulder strains and expanded his claim to include cervical radiculopathy at
C6 and C7. Appellant stopped work on May 4, 2004 and returned on May 12, 2004 and worked
intermittently thereafter.
A magnetic resonance imaging (MRI) scan of the left shoulder dated May 26, 2004
revealed supraspinatus tendinopathy and a small partial thickness tear. An MRI scan of the right
shoulder dated May 28, 2004 revealed a chronic full thickness tear of the supraspinatus tendon.
An MRI scan of the cervical spine dated June 23, 2004 revealed disc degeneration and disc
bulging at the C5-6 and C6-7 levels. An electromyogram (EMG) dated August 11, 2004
revealed mild carpal tunnel syndrome and subacute C7-8 radiculopathy.
On November 2, 2004 the Office referred appellant for a second opinion to Dr. Robert F.
Draper, Jr., a Board-certified orthopedist. In a November 17, 2004 report, Dr. Draper indicated
that he reviewed the records provided to him and examined appellant. He diagnosed cervical
strain, preexisting degenerative cervical disease with disc protrusions, disc bulging at C5-6 and
C6-7, right shoulder strain, preexisting degenerative changes of the humeral head, preexisting
osteoarthritis of the right acromioclavicular joint, left shoulder strain, preexisting degenerative
change of the humeral head and preexisting osteoarthritis of the left shoulder. Dr. Draper noted
that 50 percent of appellant’s complaints were associated with preexisting degenerative cervical
disc disease and preexisting osteoarthritis of the bilateral shoulders and 50 percent was related to
the April 29, 2004 work injury. He opined that appellant could return to work full time with
restrictions.
On August 15, 2005 the Office reduced appellant’s compensation to reflect her actual
earnings as a full-time limited-duty letter carrier effective February 26, 2005.
On February 27, 2006 appellant filed a schedule award claim. In a June 9, 2005 report,
Dr. David Weiss, an osteopath, noted that appellant reached maximum medical improvement on
June 9, 2005. Cervical spine examination revealed tenderness over the posterior midline from
C3-7 and range of motion was carried through with pain. Right shoulder examination revealed
focal acromioclavicular joint point tenderness, circumduction was positive for crepitance, range
of motion for forward elevation measured 160 degrees, abduction measured 90 degrees,
adduction measured 65 degrees, external rotation measured 80 degrees and internal rotation
measured 35 degrees. Left shoulder examination showed focal acromioclavicular joint point
tenderness and circumduction was positive for crepitance. Dr. Weiss noted that, based on the
fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment,2 (A.M.A., Guides), appellant had 41 percent impairment of the right arm and
50 percent impairment of the left arm. He calculated that right shoulder flexion of 160 degrees
yielded one percent impairment, abduction of 90 degrees yielded four percent impairment and
1

The record indicates that appellant has filed other injury claims. On August 23, 1998 she sustained an injury
which was accepted for right ankle sprain/strain, file number xxxxxx994. A July 13, 1992 injury was accepted for
lumbar sprain/strain, file number xxxxxx524. A March 13, 1993 injury was accepted for left side abrasion, file
number xxxxxx872. A July 7, 1998 injury was accepted for neck and shoulder strain, file number xxxxxx383.
2

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

2

internal rotation of 35 degrees yielded four percent impairment. Dr. Weiss found a Grade 3
sensory deficit of the right arm C6 nerve root for 5 percent impairment, Grade 3 sensory deficit
of the right C7 nerve root for 3 percent impairment and 30 percent impairment for a right grip
strength deficit. For the left arm he found three percent impairment for 140 degrees of flexion,
six percent impairment for 90 degrees of abduction and one percent impairment for 70 degrees of
internal rotation. Dr. Weiss further found a Grade 3 sensory deficit of the left C5 nerve root for
3 percent impairment, a Grade 3 sensory deficit of the left C6 nerve root for 5 percent
impairment, a Grade 3 sensory deficit of the right C7 nerve root for 3 percent impairment, a
Grade 4 motor strength deficit left thumb abduction for 9 percent impairment and 30 percent
impairment for left grip strength deficit.
In a June 9, 2006 report, an Office medical adviser found that appellant had three percent
left arm impairment. He noted that Dr. Weiss’ calculation was nonspecific as he did not list the
diagnoses he was rating. The medical adviser indicated that he used the findings of Dr. Draper,
the second opinion physician, to calculate the impairment for loss of shoulder range of motion
because he believed these figures reflected appellant’s best effort. He found zero percent
impairment for the right shoulder flexion of 180 degrees, abduction of 190 degrees, internal
rotation of 90 degrees and external rotation of 90 degrees. For the left shoulder the medical
adviser found zero percent impairment for flexion of 180 degrees, abduction of 180 degrees,
internal rotation of 90 degrees and external rotation of 90 degrees. He indicated that with respect
to cervical root deficits at C5-6, Dr. Weiss’ findings and impairment contradicted the objective
findings by the second opinion physician and noted that the only objective bases for cervical
nerve root impairment was the EMG evidence for C7 nerve root radiculopathy and therefore
appellant would have a sensory deficit of the left C7 nerve root of three percent impairment. The
medical adviser referenced the appropriate tables and charts in the A.M.A., Guides.
The Office found that a medical conflict existed between the opinions of Dr. Weiss and
the Office medical adviser regarding appellant’s permanent impairment. To resolve the conflict,
on July 26, 2006, the Office referred appellant to a referee physician, Dr. Menachem M. Meller,
a Board-certified orthopedic surgeon.
In an August 16, 2006 report, Dr. Meller noted reviewing the record and appellant’s
history. On examination he noted normal symmetric reflexes, excellent grip and pinch strength,
normal radial and ulnar nerves and negative Tinel’s sign at the cubital, carpal and radial tunnels.
Range of motion testing of the shoulders revealed flexion of 140 degrees on the right for three
percent impairment,3 extension measured 50 degrees on the right for zero percent impairment,4
abduction measured 120 degrees on the right for three percent impairment,5 adduction measured
35 degrees on the right for zero percent impairment,6 external rotation measured 70 degrees on
the right for zero percent impairment7 and internal rotation measured 75 degrees on the right for
3

Id. at 476, Figure 16-40.

4

Id.

5

Id. at 477, Figure 16-43.

6

Id.

7

Id. at 479, Figure 16-46.

3

one percent impairment.8 With regard to the left shoulder flexion measured 140 degrees for
three percent impairment,9 extension measured 45 degrees on the left for one percent
impairment,10 abduction measured 115 degrees on the left for three percent impairment,11
adduction measured 35 degrees on the left for zero percent impairment,12 external rotation
measured 65 degrees on the left for zero percent impairment13 and internal rotation measured
80 degrees on the left for zero percent impairment.14 Regarding radiculitis, Dr. Meller found no
findings to support ongoing impairment or disability relating to neurologic dysfunction including
radiculitis or radiculopathy. He further noted that he found no evidence of impairment or
limitations with regards to carpal tunnel syndrome or compression neuropathy of any type.
Dr. Muller opined that sensory deficit and weakness were not objectively present, would not be
causally related to the work injury and were inconsistent with the EMG findings of August 11,
2004, which revealed subacute C7-8 radiculopathy on the left and did not support impairment
relating to the left C5-6 and C7 nerve roots or the right C6 and C7 nerve roots. He opined that in
accordance with the A.M.A., Guides appellant sustained a seven percent upper extremity
bilaterally based on loss of range of motion for the shoulders due to the accepted work-related
injury.
In an October 13, 2006 decision, the Office granted appellant a schedule award for 7
percent permanent impairment of the left and right upper extremities. On October 18, 2006,
appellant requested an oral hearing.
On January 9, 2007 an Office hearing representative vacated the October 13, 2006
decision. The hearing representative found that Dr. Meller did not cite tables and charts in the
A.M.A., Guides in support of his impairment determination and did not provide specific findings
for pinch and grip strength. The Office was instructed to obtain a supplemental report from
Dr. Meller.
On February 6, 2007 the Office requested a supplemental report from Dr. Meller,
specifically asking that he clarify his impairment determination. In a March 6, 2007 report,
Dr. Meller noted that impairment due to loss of range of motion of the bilateral shoulder for
flexion was three percent pursuant to Figure 16-40 of the A.M.A., Guides. He noted that internal
rotation was calculated at 1 percent on the right and zero percent on the left and external rotation
was zero percent bilaterally pursuant to Figure 16-46 of the A.M.A., Guides. Dr. Meller noted
that impairment for abduction and adduction was calculated using Figure 16-43 and noted that
adduction was interpolated between zero and one and was adjusted up one fraction in one
8

Id.

9

See supra note 3.

10

Id.

11

See supra note 5.

12

Id.

13

See supra note 7.

14

Id.

4

evaluation and down one fraction in the next evaluation with the outcome being identical. He
further noted that he adjusted internal rotation for the right shoulder and extension of the left
shoulder up to one percent, which was to compensate for the adjustment downward in adduction.
Dr. Meller noted that appellant’s grip strength was excellent and measured 5 on a 5 point
strength scale and indicated that, under section 16-8, page 508 of the A.M.A., Guides, decreased
grip strength was not ratable. He noted that appellant did not have any verifiable neurologic
deficit or decreased muscle strength.
By decision dated April 12, 2007, the Office denied appellant’s request for an additional
schedule award. On April 18, 2007 appellant requested an oral hearing.
On July 3, 2007 the hearing representative set aside the April 12, 2007 decision and
remanded the matter for further development. He instructed the Office to refer Dr. Meller’s
reports to an Office medical adviser to determine whether the A.M.A., Guides were properly
applied.
In a July 29, 2007 report, an Office medical adviser opined that appellant had nine
percent impairment of the left and right upper extremities. He noted that range of motion of the
shoulders revealed flexion of 140 degrees on the right for three percent impairment,15 extension
measured 40 degrees on the right for one percent impairment,16 abduction measured 120 degrees
on the right for three percent impairment,17 adduction measured 35 degrees on the right for one
percent impairment18 not zero percent as noted by Dr. Meller, external rotation measured
70 degrees on the right for zero percent impairment19 and internal rotation measured 75 degrees
on the right for one percent impairment.20 With regard to the left shoulder flexion measured
140 degrees for three percent impairment,21 extension measured 40 degrees on the left for one
percent impairment,22 abduction measured 115 degrees on the left for three percent impairment,23
adduction measured 35 degrees on the left for one percent impairment24 not zero percent as noted
by Dr. Meller, external rotation measured 60 degrees on the left for zero percent impairment25

15

Supra note 3.

16

Id.

17

Supra note 5.

18

Id.

19

Supra note 7.

20

Id.

21

Supra note 3.

22

Id.

23

Supra note 5.

24

Id.

25

Supra note 7.

5

and internal rotation measured 80 degrees on the left for zero percent impairment.26 Totaling
these range of motion impairments yielded nine percent impairment for the right arm and eight
percent impairment for the left arm. The medical adviser further noted that appellant’s condition
was accepted for cervical radiculopathy at C6-7 where radiculopathy was clinically documented
at the C7 nerve root on the left by an EMG and MRI scan and therefore opined that appellant
was entitled to a schedule award for C7 nerve root involvement. He noted that appellant had one
percent impairment for Grade 4 pain in the C7 distribution on the left.27 The medical adviser
combined this with eight percent for loss of motion to arrive at nine percent impairment of the
left arm.
In a decision dated August 20, 2007, the Office granted appellant a nine percent
impairment of the right and left upper extremities. It noted that he was entitled to an additional
two percent impairment for both the right and left upper extremity. Appellant requested an oral
hearing which was held on December 11, 2007.
In a decision dated March 5, 2008, the hearing representative affirmed the August 20,
2007 Office decision.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act28 and its
implementing regulations29 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.
ANALYSIS
On appeal, appellant contends that he has more than nine percent permanent impairment
of each arm. The Office accepted appellant’s claim for cervical strain and bilateral shoulder
strains and expanded his claim to include cervical radiculopathy at C6 and C7. It properly found
that a conflict in the medical evidence existed between appellant’s attending physician,
Dr. Weiss, who disagreed with the Office medical adviser, concerning the extent of appellant’s
impairment of the upper extremities. Consequently, the Office referred appellant to Dr. Meller
to resolve the conflict.

26

Id.

27

Id. at 424, Table 15-15, 15-17.

28

5 U.S.C. § 8107.

29

20 C.F.R. § 10.404.

6

Where there exists a conflict of medical opinion and the case is referred to an impartial
specialist for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently
well rationalized and based upon a proper factual background, is entitled to special weight.30
The Board finds that, under the circumstances of this case, the opinion of Dr. Meller in
his August 16, 2006 and March 6, 2007 reports is sufficiently well rationalized and based upon a
proper factual background such that it is entitled to special weight and establishes that appellant
sustained no more than a nine percent impairment of the left and right upper extremities.
Dr. Meller reviewed appellant’s history and reported findings. He noted range of motion
of the shoulders revealed flexion of 140 degrees on the right for three percent impairment,31
extension measured 50 degrees on the right for a zero percent impairment,32 abduction measured
120 degrees on the right for a three percent impairment,33 external rotation measured 70 degrees
on the right for a zero percent impairment34 and internal rotation measured 75 degrees on the
right for a one percent impairment.35 The Board notes that Dr. Meller stated that adduction of
35 degrees provided zero percent impairment;36 however, the A.M.A., Guides, section 16.4i,
page 474, provides that impairment values for motion measurements falling between those
shown in the pie chart may be adjusted or interpolated proportionally in the corresponding
interval. Thus, 35 degrees of adduction yields one percent impairment of the right and left arms.
For the left shoulder, flexion measured 140 degrees for a three percent impairment,37 extension
measured 45 degrees on the left for one percent impairment,38 abduction measured 115 degrees
on the left for a three percent impairment,39 adduction measured 35 degrees on the left for one
percent impairment40 as noted above, external rotation measured 65 degrees on the left for zero
percent impairment41 and internal rotation measured 80 degrees on the left for zero percent
impairment.42 Dr. Meller noted that, with regard to radiculitis, he found no neurologic findings
to support ongoing impairment or disability relating to neurologic dysfunction including
30

Aubrey Belnavis, 37 ECAB 206 (1985). See 5 U.S.C. § 8123(a).

31

See supra note 3.

32

Id.

33

See supra note 5.

34

See supra note 7.

35

Id.

36

Id.

37

See supra note 3.

38

Id.

39

See supra note 5.

40

Id.

41

See supra note 7.

42

Id.

7

radiculitis or radiculopathy. He further noted that he found no evidence of impairment or
limitations for carpal tunnel syndrome or compression neuropathy of any type. Dr. Meller
opined that sensory deficit and weakness were not objectively present although the EMG
findings of August 11, 2004 revealed subacute C7-8 radiculopathy on the left.
In an October 16, 2007 report, the Office medical adviser applied the A.M.A., Guides to
Dr. Meller’s findings and found that appellant had nine percent permanent impairment of the left
and right arms. He concurred with Dr. Meller’s determination for the shoulder range of motion
findings except for noting that correct application of the A.M.A., Guides, as noted, provide that
adduction of 35 degrees yields one percent impairment. However, the medical adviser
incorrectly noted that extension measured 40 degrees for the right and left shoulder for one
percent impairment,43 rather, Dr. Meller noted extension for the right shoulder measured 50
degrees for zero percent impairment and 45 degrees on the left for a one percent impairment.44
Based on lost range of motion, appellant would be entitled to eight percent impairment for the
right arm and eight percent impairment for the left upper extremity. The medical adviser further
noted that appellant’s condition was accepted for cervical radiculopathy at C6-7 and
radiculopathy was clinically documented at the C7 nerve root on the left by an EMG and MRI
scan. He opined that appellant was entitled to a schedule award for C7 nerve root involvement.
The medical adviser also calculated that appellant had one percent impairment of the left arm for
sensory deficit or pain in the distribution of the C7 nerve root, under Table 15-17 of the A.M.A.,
Guides.45 He advised that, for sensory deficit or pain, appellant would be classified as Grade 4,
for a 25 percent sensory deficit or pain,46 in the distribution of C7 nerve root.47 The A.M.A.,
Guides provides that the maximum allowed for total impairment of the C7 nerve root is five
percent. The Board notes that when the maximum for the C7 nerve root, 5 percent, is multiplied
by the 25 percent allowed for a Grade 4 sensory deficit, this yields 1.25 percent impairment,
rounded to 1 percent, for sensory loss.48 These impairments total eight percent impairment of the
right arm and nine percent impairment of the left arm.
The Board finds that the reports of Dr. Meller establish that there is no basis under the
A.M.A., Guides for an award greater than the nine percent impairment previously granted.
On appeal, appellant asserts that the medical adviser improperly resolved the conflict of
opinion after referral to a referee physician. The Board finds this argument to be without merit.
To properly resolve a medical conflict, it is the impartial medical specialist who should provide a
reasoned opinion as to the extent of permanent impairment in accordance with the A.M.A.,
43

See supra note 3.

44

The Board also notes that Dr. Meller measured external rotation of the left shoulder of 65 degrees not
60 degrees as not by the medical adviser; however, this measurement also results in zero percent impairment. See
id. at 479, Figure 16-46.
45

Id. at 424, Figure 15-17.

46

Id. at 424, Figure 15-15.

47

Id. at 552, Figure 15-17.

48

Id. at 482, 552, Table 16-10, 17-37.

8

Guides. An Office medical adviser may review the opinion, but the resolution of the conflict is
the responsibility of the impartial medical specialist.49 In this case, the referee physician
resolved the conflict of opinion. The medical adviser applied the findings of the referee
physician to the A.M.A., Guides. He corrected an error by Dr. Meller in applying the A.M.A.,
Guides, noting that, although Dr. Meller calculated zero percent impairment for adduction of
35 degrees50 for the left and right upper extremity, section 16.4i, page 474, of the A.M.A.,
Guides, provides that motion measurements falling between those shown in the pie chart may be
adjusted or interpolated proportionally in the corresponding interval which would allow for
one percent impairment rating. The medical adviser also corrected an error by Dr. Meller in
applying the A.M.A., Guides, noting that appellant’s condition was accepted for cervical
radiculopathy at C6 and C7 and he would be entitled to a one percent impairment for Grade 4
pain in the distribution of the C7 nerve root on the left, which would allow for an impairment
rating of nine percent for the left upper extremity.51 Thus, the findings of Dr. Meller establish
that appellant has no greater permanent impairment than that awarded by the Office.
CONCLUSION
The Board finds that appellant has no more than nine percent permanent impairment of
the right and left upper extremity.

49

See Richard R. LeMay, 56 ECAB 341(2005) (where the Board found that the Office medical adviser may
review the opinion of the referee physician; however, the resolution of the conflict is the responsibility of the
impartial specialist). See Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter
3.500.5(c)(1) (provides that an Office medical adviser may review the report of a referee specialist where
determination of a schedule award is involved and that the medical adviser may note any medical errors found, such
as improper application of the A.M.A., Guides).
50

See supra note 5.

51

To the extent that the Office medical adviser went outside of Dr. Meller’s findings, with regard to rating pain
due to cervical radiculopathy, this is harmless error as this increased the amount of appellant’s permanent
impairment.

9

ORDER
IT IS HEREBY ORDERED THAT the March 5, 2008 and August 20, 2007 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: March 11, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

10