United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
U.S. POSTAL SERVICE, CENTRAL
MASSACHUSETTS PROCESSING &
DISTRIBUTION CENTER, Shrewsbury, MA,
Employer
__________________________________________

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

Docket No. 20-0292
Issued: June 26, 2020

Case Submitted on the Record

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

JURISDICTION
On November 20, 2019 appellant filed a timely appeal from an August 28, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of this case.2

1

5 U.S.C. § 8101 et seq.

2
The Board notes that, following the issuance of the August 28, 2019 decision, OWCP received additional
evidence. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to expand the acceptance of his
claim to include additional conditions causally related to the accepted February 9, 2019
employment injury.
FACTUAL HISTORY
On February 11, 2019 appellant, then a 54-year-old maintenance mechanic, filed a
traumatic injury claim (Form CA-1) alleging that on February 9, 2019 he sprained his right hand
when he tripped when stepping off a belt onto a catwalk while in the performance of duty. On the
reverse side of the claim form, the employing establishment indicated that he stopped work on the
date of injury.
Appellant was initially treated in a hospital emergency room on February 9, 2019 by
several physicians, including Dr. Martin A. Reznek, Board-certified in emergency medicine.
Dr. Reznek noted a history of injury that on that date appellant slipped while trying to step over an
object and fell on his right side pinning his hand against his body. He reported examination
findings and diagnosed sprain of the right wrist, initial encounter.
In a February 11, 2019 duty status report (Form CA-17), Dr. Joseph Kuruvilla, an internist,
noted a history that on February 9, 2019 appellant fell and landed on his right wrist. He diagnosed
a soft tissue injury of the right hand due to injury. Dr. Kuruvilla advised that appellant could not
resume work and listed his restrictions. In a February 11, 2019 letter, he requested that appellant
be excused from work until further evaluation on February 19, 2019.
In a March 1, 2019 attending physician’s report (Form CA-20), Dr. Kuruvilla reiterated
appellant’s history of injury on February 9, 2019 and noted that the injury occurred at work. He
diagnosed right hand swelling and checked a box marked “Yes” indicating that the diagnosed
condition was caused or aggravated by the employment activity. Dr. Kuruvilla indicated that
appellant was currently off work due to shoulder surgery performed on February 19, 2019.
A February 9, 2019 right hand x-ray performed by Dr. Hao H. Lo, a Board-certified
diagnostic radiologist, was normal.
CA-17 and CA-20 form reports dated March 7, 2019 by Dr. Michael A. Brown, a Boardcertified orthopedic surgeon, noted a history that on February 9, 2019 appellant fell on his right
wrist. Dr. Brown diagnosed left shoulder rotator cuff tear and right chronic biceps tendon proximal
rupture. In the Form CA-17 report, he indicated that the diagnosed conditions were due to
appellant’s injury. In the Form CA-20 report, Dr. Brown indicated that the diagnosed conditions
were not caused or aggravated by an employment activity. He advised that appellant was totally
disabled from February 19 through May 2019.
OWCP, in a March 12, 2019 development letter, notified appellant that when his claim was
received it appeared to be a minor injury that resulted in minimal or no lost time from work, and
since the employing establishment had not controverted continuation of pay or challenged the case,
a limited amount of medical expenses were administratively approved and paid. It noted that it
had reopened the claim for formal consideration because he had not returned to work in a full-time
capacity. OWCP informed appellant that additional factual and medical evidence was required to
2

establish his claim. It advised him of the type of factual and medical evidence necessary to
establish his claim and attached a questionnaire for his completion. OWCP afforded appellant 30
days to submit the requested evidence.
On March 19, 2019 appellant responded to OWCP’s development letter and submitted
evidence by Dr. Edward R. Calkins, a Board-certified hand and plastic surgeon. In a March 11,
2019 progress note, Dr. Calkins reported physical examination findings and reviewed diagnostic
test results with regard to appellant’s right hand. He noted that appellant presented status post a
mechanical fall onto his right hand at work on February 9, 2019 with generalized right hand pain
and small ﬁnger stiffness in the setting of mild-degenerative arthritis. Dr. Calkins related that,
although appellant suffered from some stiffness, his primary diagnosis seemed most consistent
with arthritis. Appellant was most limited by decreased range of motion at the proximal
interphalangeal (PIP) and distal interphalangeal (DIP) joints and had pain along the ulnar border
of the digit, but he had no formal work restrictions. Dr. Calkins prescribed physical therapy to
treat appellant’s right hand condition.
OWCP also received a March 15, 2019 physical therapy progress note.
In progress notes dated February 11 and 28, 2019, Dr. Kuruvilla restated appellant’s history
of injury on February 9, 2019. He reported findings on examination of the right hand and advised
that appellant was unable to work due to pain, swelling, and stiffness in his hand.
In a February 12, 2019 report, Dr. Reznek opined that appellant had an abrasion over the
ulnar styloid on the right hand.
By decision dated April 22, 2019, OWCP denied appellant’s traumatic injury claim finding
that the evidence of record failed to establish that a diagnosed condition was causally related to
the February 9, 2019 accepted employment incident. It explained that he had not provided a
rationalized medical opinion from his physician explaining how the accepted employment incident
caused or aggravated his medical condition.
OWCP received additional physical therapy progress notes dated March 19 and 26, 2019.
In a progress note dated April 8, 2019, Dr. Calkins reported examination findings with
regard to the right hand injury appellant sustained on February 9, 2019. He provided an impression
that appellant had not progressed in a therapy program and recommended an exercise program.
Additional physical therapy progress notes dated April 3, 10, and 22, 2019 were received.
On May 30, 2019 appellant requested reconsideration of the April 22, 2019 decision and
submitted additional medical evidence. A May 12, 2019 right hand magnetic resonance imaging
(MRI) scan report by Dr. Ryan Tai, a diagnostic radiologist, revealed a complete tear of the fifth
flexor digitorum profundus (FDP) tendon with the distal tendon retracted to the level of the
metatarsal shaft proximal to the A1 pulley and distal to the carpal tunnel. The proximal retracted
tendon was not visualized. Dr. Tai also found multifocal mild osteoarthritis, predominantly at the
fifth DIP, PIP, and thumb carpometacarpal joints.
In a May 16, 2019 report, Dr. Jeffrey F. Dietz, an orthopedic hand surgeon, noted that
appellant presented for a follow-up discussion of right hand MRI scan results to further evaluate a
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right small finger injury. He reported that the MRI scan showed a full-thickness FDP tendon tear
with retraction to the metacarpal head. Dr. Dietz provided an impression of finger pain. He opined
that the injury seen on the MRI scan and appellant’s current symptoms were caused by an injury
he sustained at work.
Additional physical therapy progress notes dated March 19 and 26, 2019 were received.
OWCP, by decision dated August 28, 2019, modified its April 22, 2019 decision to reflect
that the medical evidence submitted was sufficient to establish that appellant’s diagnosis of right
hand abrasion was causally related to the February 9, 2019 accepted employment incident.
However, it found that the medical evidence of record was insufficient to establish a right
finger/hand tendon tear or aggravation of his preexisting, underlying right hand osteoarthritis
causally related to the accepted employment injury.
In a separate letter of even date, OWCP accepted appellant’s claim for abrasion of the right
wrist, sequela and provided instructions on how to file for reimbursement of medical expenses and
lost wages.
LEGAL PRECEDENT
Where an employee claims that, a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.3
The medical evidence required to establish causal relationship between a specific
condition, as well as any attendant disability claimed, and the employment injury, is rationalized
medical opinion evidence.4 A physician’s opinion on whether there is a causal relationship
between the diagnosed condition and the employment must be based on a complete factual and
medical background.5 Additionally, the opinion of the physician must be expressed in terms of a
reasonable degree of medical certainty, and must be supported by medical rationale, explaining
the nature of the relationship between the diagnosed condition and the specific employment
incident identified by the claimant.6
ANALYSIS
The Board finds that appellant has not met his burden of proof to expand the acceptance of
his claim to include additional conditions causally related to the accepted February 9, 2019
employment injury.

3

W.L., Docket No. 17-1965 (issued September 12, 2018); V.B., Docket No. 12-0599 (issued October 2, 2012);
Jaja K. Asaramo, 55 ECAB 200, 204 (2004).
4
T.C., Docket No. 19-1043 (issued November 8, 2019); M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB
465 (2004).
5

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

6

See M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41
ECAB 345 (1989).

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In support of his request for claim expansion, appellant submitted a May 16, 2019 report
from Dr. Dietz who diagnosed pain and full-thickness FDP tendon tear with retraction to the
metacarpal head of the right finger. Dr. Dietz opined that appellant’s conditions were causally
related to his work injury. While he provided an affirmative opinion which supported causal
relationship, he did not provide rationale necessary to establish the critical element of causal
relationship. A medical opinion should reflect a correct history and offer a medically sound
explanation by the physician of how the specific employment incident physiologically caused or
aggravated the diagnosed conditions.7 For these reasons, the Board finds that Dr. Dietz’ report is
insufficient to establish an additional condition is employment related.
Dr. Kuruvilla, in his February 11, 2019 Form CA-17 report, noted a history of the
February 9, 2019 employment injury and diagnosed right hand soft tissue injury due to the injury.
Additionally, he advised that appellant was unable to work and provided his work restrictions.
Dr. Kuruvilla failed to provide a firm diagnosis of a particular medical condition.8 Furthermore,
he did not provide a rationalized opinion based on objective findings regarding the causal
relationship between appellant’s right hand condition, disability from work, and work restrictions,
and the accepted employment injury. Medical reports without adequate rationale on causal
relationship are of diminished probative value and are insufficient to meet an employee’s burden
of proof.9 Likewise, in his March 1, 2019 Form CA-20 report, Dr. Kuruvilla failed to provide a
firm diagnosis as he diagnosed right hand swelling. He checked a box marked “Yes” indicating
that the diagnosed condition was caused or aggravated by the February 9, 2019 employment injury.
The Board has held that a checkmark on a form report, without supporting rationale, is of limited
probative value, and is insufficient to establish the claim.10 This report is, therefore, of limited
probative value. Dr. Kuruvilla’s remaining medical evidence reiterated appellant’s history of
injury on February 9, 2019 and disability from work. However, he did not relate any additional
conditions due to appellant’s February 9, 2019 employment injury. Medical evidence that does
not offer an opinion that additional conditions are work related is of no probative value on the
issue of causal relationship.11 For these reasons, the Board finds that Dr. Kuruvilla’s medical
evidence is insufficient to meet appellant’s burden of proof.
Dr. Brown’s March 7, 2019 Form CA-17 and Form CA-20 reports related a history of the
February 9, 2019 employment injury and noted diagnoses of left shoulder rotator cuff tear and
right chronic biceps tendon proximal rupture. He opined that the diagnosed conditions were due
to the accepted work injury. Dr. Brown also opined that these conditions were not causally related
to the accepted work injury. He advised that appellant was totally disabled from February 19,
7

See T.M., Docket No. 19-1283 (issued December 2, 2019); J.M., Docket No. 17-1002 (issued August 22, 2017).

8
See T.D., Docket No. 18-1157 (issued March 26, 2019); Deborah L. Beatty, 54 ECAB 340 (2003) (where the
Board found that in the absence of a medical report providing a diagnosed condition and a reasoned opinion on causal
relationship with the employment incident, appellant did not meet her burden of proof).
9

T.D. id.; C.J., Docket No. 18-0148 (issued August 20, 2018); Franklin D. Haislah, 52 ECAB 457 (2001);
Jimmie H. Duckett, 52 ECAB 332 (2001) (medical reports not containing rationale on causal relationship are entitled
to little probative value).
10

V.B., Docket No. 17-1847 (issued April 4, 2018); L.B., Docket No. 17-1678 (issued February 1, 2018).

11

See T.D., supra note 8; L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued
July 6, 2018).

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2019 through May 2019. Although it is unclear as to which opinion on causal relationship was
made first by Dr. Brown as they were both rendered on the same day, he did not provide medical
rationale explaining why he changed his opinion. The Board finds that the equivocal nature of his
opinion on the critical issue of causal relationship diminishes its probative value.12 The Board has
held that medical opinions that are speculative or equivocal are of diminished probative value.13
Thus, Dr. Brown’s reports are insufficient to meet appellant’s burden of proof.
Dr. Reznek’s February 9, 2019 report and Dr. Calkins’ March 11 and April 8, 2019
progress notes related a history of the February 9, 2019 employment injury and addressed
appellant’s right wrist and hand conditions. However, neither physician specifically related the
diagnosed conditions to the accepted work injury. As noted above, the Board has held that medical
evidence that does not offer an opinion regarding the cause of a diagnosed condition is of no
probative value on the issue of causal relationship.14 The Board finds, therefore, that their medical
evidence is insufficient to establish an additional employment-related condition.
The diagnostic test reports of Dr. Lo and Dr. Tai addressed appellant’s right hand
conditions. Diagnostic studies, standing alone, lack probative value as they do not address whether
the employment injury caused any of the diagnosed conditions.15 These reports, therefore, are also
insufficient to establish appellant’s burden of proof.
Appellant also submitted physical therapy progress notes. However, physical therapists
are not considered physicians as defined under FECA and thus their reports do not constitute
competent medical evidence.16 Consequently, these progress notes are insufficient to establish
expansion of his claim.
As the medical evidence of record is insufficient to establish causal relationship, the Board
finds that appellant has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

12

R.C., Docket No. 18-0546 (issued November 14, 2018).

13

V.W., Docket No. 19-1537 (issued May 13, 2020).

14

Supra note 12.

15
See D.H., Docket No. 19-0931 (issued October 2, 2019); R.J., Docket No. 17-1365 (issued May 8, 2019); E.G.,
Docket No. 17-1955 (issued September 10, 2018).

Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals
such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under
FECA); R.L., Docket No. 19-0440 (issued July 8, 2019) (nurse practitioners and physical therapists are not considered
physicians under FECA).
16

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CONCLUSION
The Board finds that appellant has not met his burden of proof to expand the acceptance of
his claim to include additional conditions causally related to the accepted February 9, 2019
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the August 28, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 26, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
U.S. POSTAL SERVICE, CLEVELAND POST
OFFICE, Cleveland, OH, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 22-0359
Issued: March 1, 2022

Case Submitted on the Record

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

On January 12, 2022 appellant filed a timely appeal from a December 13, 2021 merit
decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards assigned Docket No. 22-0359.
In a letter dated February 15, 2022, appellant requested that the appeal be withdrawn.
The Board has duly considered the matter and concludes that appellant’s request for the
withdrawal of the appeal should be granted. Accordingly,

IT IS HEREBY ORDERED THAT appellant’s request for the withdrawal of the appeal
is granted. The appeal docketed as No. 22-0359 is dismissed.
Issued: March 1, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., widow of G.R., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF RECLAMATION MISSOURI BASIN
REGION, Billings, MT, Employer
__________________________________________

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

Docket No. 19-1675
Issued: October 8, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On August 5, 2019 appellant filed a timely appeal from a February 8, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.3

1

Appellant also timely requested oral argument. By order dated September 25, 2020, the Board exercised its
discretion and denied her request as her arguments could be adequately addressed in a decision based on a review of
the case record. Order Denying Request for Oral Argument, Docket No. 19-1675 (issued September 25, 2020).
2

5 U.S.C. § 8101 et seq.

3
The Board notes that following the February 8, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether OWCP properly determined that the employee received an
overpayment of compensation, for which he was not at fault, in the amount of $24,634.57 during
the period May 4, 1991 through October 6, 2017 because life insurance premiums were not
deducted from his FECA compensation; and (2) whether OWCP properly denied appellant’s
request for waiver of recovery of the overpayment.
FACTUAL HISTORY
On March 8, 1990 the employee, then a 39-year-old general operator of heavy equipment,
filed an occupational disease claim (Form CA-2) alleging that he sustained a herniated nucleus
pulpous (HNP) due to years of lifting and carrying heavy objects and long hours of vibrating and
jarring while driving and operating heavy equipment in the performance of duty. Appellant
stopped work on April 27, 1990. OWCP accepted the claim for aggravation of displacement of
lumbar intervertebral disc without myelopathy. Acceptance of the claim was subsequently
expanded to include the conditions of post laminectomy syndrome, lumbar region; mechanical
complication of nervous system device, implant, and graft. OWCP placed the employee on the
periodic rolls.
On October 10, 2017 appellant called OWCP and notified them that the employee died on
October 6, 2017.
In an October 25, 2017 letter to the Office of Personal Management (OPM), OWCP
advised that the employee had elected to receive OPM retirement benefits in lieu of FECA benefits
effective September 20, 2017. It also noted that the date of the last Basic Life Insurance (BLI)
deduction was May 15, 2015, the employee’s 65th birthday and that the date of the last Optional
Life Insurance (OLI) deduction was October 6, 2017.
On November 7, 2017 OPM notified OWCP that there was a discrepancy regarding the
information provided by OPM in its April 18, 1991 letter regarding the employee’s life insurance
coverage. In its April 18, 1991 letter, OPM advised that the employee had BLI (no reduction)
coverage, as well as standard optional and family optional life insurance, based upon a final pay
rate of $33,099.00 per annum. It also noted that the employee’s FECA compensation could start
on May 1, 1991. A copy of the employee’s election of BLI and optional benefits was not included.
In December 13, 2017 correspondence, OWCP indicated that OPM had advised that the
employee elected no reduction of his Post Retirement Basic Life Insurance (PRBLI) effective
May 1, 1991, the compensation start date. It advised that there was an overpayment for underdeducted PRBLI premiums from the employee’s estate.
In a March 20, 2018 memorandum, OWCP indicated that the employee’s compensation
history confirmed that he received continuous OWCP compensation benefits from May 1, 1991
(the date of his PRBLI coverage with no reduction election) through October 6, 2017 (the date of
his death) and that no deductions for PRBLI were taken from his OWCP compensation. A
compensation payment history form dated December 13, 2017 indicated that no premiums for
PRBLI were deducted for the period May 1, 1991 through October 6, 2017.

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On May 18, 2018 OWCP advised appellant of its preliminary determination that she had
received an overpayment of compensation in the amount of $24,634.57 because PRBLI premiums
had not been deducted from the employee’s FECA compensation for the period May 4, 1991
through October 6, 2017. It explained how the overpayment was calculated. OWCP also found
he was without fault in the creation of the overpayment because he was not aware, nor could he
reasonably have been expected to know, that it had paid compensation incorrectly. It forwarded
an overpayment action request and an overpayment recovery questionnaire (Form OWCP-20) and
allotted appellant 30 days to respond.
On June 14, 2018 appellant requested a prerecoupment hearing before an OWCP hearing
representative. She disagreed with the fact and amount of the overpayment and requested waiver
as the overpayment occurred through no fault of the employee. In a June 12, 2018 statement,
appellant further explained why she disagreed that an overpayment had occurred and that she
disagreed with the amount.
Appellant also submitted a signed overpayment recovery questionnaire dated June 14,
2018 and supporting financial documentation. She indicated that she had one dependent (her
mother). Appellant reported total monthly income of $6,729.29 and total expenses of $7,276.27.
She noted one installment debt which then totaled $500.00 was paid at $50.00 per month.
Appellant noted that she owned valuable property and real estate other than her home, family
automobile, and furnishings which included another house with equity income of almost $7,000.00
and 40 acres of undeveloped pasture worth $19,680.00. She also indicated that she had funds
totaling $208,300.94.
A telephonic prerecoupment hearing was held on December 14, 2018. The hearing
representative requested that appellant provide updated supporting financial documentation of the
information provided on the Form OWCP-20. No updated financial information was submitted.4
By decision dated February 8, 2019, an OWCP hearing representative finalized the
preliminary determination of May 18, 2018. The hearing representative found the evidence of
record was sufficient to establish than an overpayment of compensation in the amount of
$24,634.57 had been created for the period May 4, 1991 through October 6, 2017 as the employee
had elected PRBLI at no reduction effective May 1, 1991 without an appropriate offset. The
hearing representative further found that the employee was without fault in the creation of the
overpayment. Recovery of the overpayment was due and payable in full.
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 his or her duty.5
When an overpayment has been made to an individual because of an error of fact or law,

4

The Board notes that on February 1, 2019 OWCP received additional evidence, but evidence beyond the first two
pages of the submission is not of record.
5

5 U.S.C. § 8102(a).

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adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which the individual is entitled.6
Under the FEGLI program, most civilian employees of the Federal Government are eligible
to participate in BLI and one or more of the options.7 The coverage for BLI is effective unless
waived8 and premiums for basic and optional life coverage are withheld from the employee’s pay.9
Upon retirement or upon separation from the employing establishment or being placed on the
periodic FECA compensation rolls, an employee may choose to continue basic and OLI coverage,
in which case the schedule of deductions made will be used to withhold premiums from his annuity
or compensation payments.10
A 1980 amendment of 5 U.S.C. § 8706(b)(2) provided that an employee receiving
compensation under FECA could elect continuous withholdings from his or her compensation, so
that his or her life insurance coverage could be continued without reduction. Regulations at 5
C.F.R. § 870.701 (December 5, 1980) provided that an eligible employee had the option of
choosing no life insurance; Option A -- basic coverage (at no additional cost) subject to continuous
withholdings from compensation payments that would be reduced by two percent a month after
age 65 with a maximum reduction of 75 percent; Option B -- basic coverage (at an additional
premium) subject to continuous withholdings from compensation payments that would be reduced
by one percent a month after age 65 with a maximum reduction of 50 percent; or Option C -- basic
coverage subject to continuous withholdings from compensation payments with no reductions after
age 65 (at a greater premium).11
Each employee must elect or waive Option A, Option B, and Option C coverage, in a
manner designated by OPM, within 60 days after becoming eligible, unless, during earlier
employment, he or she filed an election or waiver that remained in effect.12 An employee who
does not file a life insurance election form with his or her employing office, in a manner designated
by OPM, specifically electing any type of optional insurance, is considered to have waived it and
does not have that type of optional insurance.13

6

Id. at § 8129(a).

7

5 U.S.C. § 8702(a).

8

Id. at § 8702(b).

9

Id. at § 8707.

10

Id. at § 8706.

11
See D.H., Docket No. 19-0384 (issued August 12, 2019); see V.H., Docket No. 18-1124 (issued
January 16, 2019). See S.P., Docket No. 17-1888 (issued July 18, 2018).
12

5 C.F.R. § 870.504(a)(1).

13

Id. at § 870.504(b).

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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.14
ANALYSIS -- ISSUE 1
The Board finds that OWCP improperly determined that the employee received an
overpayment of compensation.
OWCP’s preliminary determination notified appellant that the employee had received an
overpayment of compensation in the amount of $24,634.57. However, the record does not
establish that appellant was a federal employee nor was she a beneficiary of FECA compensation
which is the basis of the claimed overpayment.15 For that reason, OWCP was required to follow
certain procedures to protect her, as a nonbeneficiary, and that protection is required in
overpayment cases wherein it has knowledge that a beneficiary with an existing overpayment has
died.16 Its procedures for recovery from a deceased debtor’s estate, in effect at the time of OWCP’s
February 8, 2019 decision, specifically provide instructions that:
“If it appears that the claimant’s surviving spouse will be entitled to compensation
for death benefits under 5 U.S.C. § 8133(b) from which the remaining overpayment
balance can be collected under 5 U.S.C. § 8129 within a reasonable time, or
similarly, that the claimant’s surviving spouse has clear entitlement to OPM
retirement benefits subject to offset and where it appears clear the remaining
overpayment balance can be feasibly collected from these sources, the CE may seek
the permission of the District Director to omit the estate collection process
described below. Such permission should be documented with a memorandum to
the file and a letter to the claimant’s surviving spouse should describe the collection
process contemplated.”17
Otherwise, if the claimant recently passed away, OWCP should refer the debt to the
financial management system (FMS) for offset of the deceased claimant’s last federal tax refund
under the Treasury’s Offset Program (TOP).18 OWCP has a special profile with FMS under TOP
for the collection of these specific estate debts. The CE should follow the referral procedures set
forth in PM Chapter 6.500.15, including sending the complete referral package to the National
Office for final review and forwarding to the FMS.19

14

5 U.S.C. § 8707(d); see also D.H., supra note 11; S.P., supra note 11; Keith H. Mapes, 56 ECAB 130 (2004).

20 C.F.R. §10.5 defines a “beneficiary” of FECA compensation as an individual who is entitled to a benefit under
FECA.
15

16

See R.R., Docket No. 18-0803 (issued April 25, 2019).

17
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Debt Liquidation, Chapter 6.500.15(e)
(September 2018).
18

31 C.F.R. § 285.2.

19

Supra note 18.

5

At the time of OWCP’s February 8, 2019 decision, its procedures for recovery from a
deceased employee’s estate also set forth the steps OWCP must take in making a claim against the
estate, which were not followed here.20 The record does not establish that OWCP followed the
necessary steps for debt collection in this matter.
OWCP found an overpayment in the amount of $24,634.57 because it failed to deduct
PRBLI premiums from the employee’s wage-loss compensation for the period May 4, 1991
through October 6, 2017. It reviewed the fiscal record and determined that the employee had
elected no reduction of his PRBLI effective May 1, 1991, the compensation start date, and that the
December 13, 2017 compensation payment history form confirmed that no premiums for PRBLI
were deducted for the period May 1, 1991 through October 6, 2017. The record includes OPM’s
April 18, 1991 letter notifying OWCP that the employee had elected no reduction of PRBLI on
January 24, 1991.
The Board finds, however, that OWCP failed to adequately support its determination that
the employee received a $24,634.57 overpayment due to its failure to properly deduct premiums
for PRBLI. While the record includes communications from OPM regarding the employee’s
PRBLI coverage, the record does not contain evidence that the employee affirmatively signed a
document electing any offered life insurance coverage. The Board has previously found that
OWCP must document whether and when a claimant elected life insurance coverage after
separation from federal service or retirement in order to establish the fact of overpayment of
compensation.21 As OWCP has not factually established the employee’s election of PRBLI on the
relevant dates, it has not met its burden of proof to establish that a $24,634.57 overpayment was
created between May 1, 1991 and October 5, 2017, as alleged, regarding the under deductions of
PRBLI premiums.22
The Board therefore finds that OWCP has not met its burden of proof to establish that an
overpayment of compensation occurred as alleged.
CONCLUSION
The Board finds that OWCP improperly determined that the employee received an
overpayment of compensation.23

20

Id. at Chapter 6.500.15(g)(1)-(7).

21
J.P., widow of J.P., Docket No. 18-1194 (issued April 28, 2020); P.K., Docket No. 18-0913 (issued March 5,
2020); C.P., Docket No. 19-0317 (issued July 1, 2019); R.F., Docket No. 18-0739 (issued January 2, 2019); D.T.,
Docket No. 17-0901 (issued January 29, 2018).
22

Id.

23

In light of the Board’s disposition of issue 1, issue 2 is rendered moot.

6

ORDER
IT IS HEREBY ORDERED THAT the February 8, 2019 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: October 8, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF JUSTICE, U.S. MARSHALS )
SERVICE, Arlington, VA, Employer
)
__________________________________________ )
T.B., Appellant

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

Docket No. 20-0158
Issued: March 18, 2022

Case Submitted on the Record

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

JURISDICTION
On October 28, 2019 appellant filed a timely appeal from an August 22, 2019 merit
decision and an October 10, 2019 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). 1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. 3

1
Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the
Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In
support of appellant’s oral argument request, he asserted that oral argument should be granted so that he will have an
opportunity to establish his claim. The Board, in exercising its discretion, denies appellant’s request for oral argument
because the arguments on appeal can adequately be addressed in a decision based on a review of the case record. Oral
argument in this appeal would further delay issuance of a Board decision and not serve a useful purpose. As such, the
oral argument request is denied and this decision is based on the case record as submitted to the Board.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the October 10, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether appellant has established a permanent impairment of a
scheduled member or function of the body warranting a schedule award; and (2) whether OWCP
properly denied appellant’s request for an oral hearing as untimely filed under 5 U.S.C. § 8124(b).
FACTUAL HISTORY
On February 7, 2017 appellant, then a 51-year-old inspector, filed a traumatic injury claim
(Form CA-1) alleging that on January 30, 2017 he sustained a lacerated lower lip when he fell
while in the performance of duty. He stopped work on January 30, 2017.
On January 30, 2019 OWCP accepted the claim for laceration without foreign body of
lip, initial encounter.
On March 1, 2019 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
In a March 12, 2019 development letter, OWCP advised appellant that FECA provided a
schedule award, not to exceed $3,500.00, for serious disfigurement of the face, head, or neck if
such disfigurement was likely to handicap an individual in securing or maintaining employment.
It further provided instructions for submitting photographs of the claimed disfigurement. OWCP
requested that appellant complete an attached disfigurement award application form, and that he
arrange for an attending physician to complete and submit the f orm. No further response was
received.
By decision dated August 22, 2019, OWCP denied appellant’s claim for a schedule award
finding that the evidence of record failed to establish permanent impairment of a scheduled
member or function of the body.
On September 26, 2019 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review.
By decision dated October 10, 2019, OWCP denied appellant’s request for an oral hearing
as untimely filed. The decision noted that his request dated September 26, 2019, was not made
within 30 days of OWCP’s August 22, 2019 decision. As such, appellant was not entitled to a
hearing as a matter of right. OWCP considered a discretionary hearing, but declined to grant a
hearing, noting that he could instead file for reconsideration and submit new evidence establishing
an employment-related impairment due to his accepted January 30, 2017 employment injury.
LEGAL PRECEDENT -- ISSUE 1
It is the claimant’s burden of proof to establish permanent impairment of a scheduled
member or function of the body as a result of an employment injury.4 To support a schedule award,
the file must contain competent medical evidence which shows that the impairment has reached a
4

D.F., Docket No. 18-1337 (issued February 11, 2019); Tammy L. Meehan, 53 ECAB 229 (2001).

2

permanent and fixed state and indicates the date on which this occurred, describes the impairment
in sufficient detail so that it can be visualized on review, and computes the percentage of
impairment in accordance with the A.M.A., Guides.5
Section 8107(c)(21) of FECA provides that payment of compensation not to exceed
$3,500.00 may be made for disfigurement of the face, head, or neck which is likely to handicap
the claimant in securing or maintaining employment. 6 OWCP procedures further provide that a
district medical adviser (DMA) will be asked to review such claims and to evaluate the employee’s
disfigurement. If the DMA finds that maximum medical improvement (MMI) has occurred, he or
she will review the photographs submitted along with the medical evidence of record and place a
memorandum in the file describing the disfigurement and stating whether MMI has occurred. If
the DMA finds MMI has occurred, the concurrence of the district director or assistant district
director must be obtained. Following the file review, the district director or assistant district
director will also write a memorandum which contains a description of the disfigurement. 7
ANALYSIS -- ISSUE 1
The Board finds that appellant has not established permanent impairment of a scheduled
member or function of the body warranting a schedule award.
As noted above, section 8107(c)(21) of FECA provides that payment of compensation not
to exceed $3,500.00 may be made for disfigurement of the face, head, or neck which is likely to
handicap the claimant in securing or maintaining employment. 8 The Board finds that OWCP
properly followed its procedures in determining that appellant was not entitle d to an award for
facial disfigurement. 9
In a development letter dated March 12, 2019, OWCP advised appellant of the
requirements for a schedule award. However, appellant did not submit medical evidence in

5

B.J., Docket No. 19-0960 (issued October 7, 2019).

6

5 U.S.C. § 8107(c)(21).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.10 (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.5 (January 2010); see J.S.,
Docket No. 19-1226 (issued December 23, 2019); see L.J., Docket No. 13-0104 (issued October 21, 2013).
8

5 U.S.C. § 8107(c)(21).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.10 (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.5 (January 2010).

3

support of his claim for a schedule award. The Board thus finds that he has not met his burden of
proof.
Appellant may request a schedule award or increased schedule award for his facial
disfigurement at any time based on new medical evidence.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the issuance
of the decision, to a hearing on his or her claim before a representative of the Secretary. 10 Sections
10.617 and 10.618 of the federal regulations implementing this section of FECA provide that a
claimant shall be afforded a choice of an oral hearing or a review of the written record by a
representative of the Secretary. 11 A claimant is entitled to a hearing or review of the written record
as a matter of right only if the request is filed within the requisite 30 days as determined by
postmark or other carrier’s date marking and before the claimant has requested reconsideration. 12
Although there is no right to a review of the written record or an oral hearing, if not requested
within the 30-day time period, OWCP may within its discretionary powers grant or deny
appellant’s request and must exercise its discretion. 13
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s September 26, 2019 request for
an oral hearing as untimely filed pursuant to 5 U.S.C. § 8124(b).
On September 26, 2019 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review; however, this was more than 30 days after OWCP’s
August 22, 2019 decision. 14 Section 8124(b)(1) is unequivocal on the time limitation for
requesting a hearing.15 As such, the request was untimely and appellant was not entitled to an oral
hearing as a matter of right.
The Board further finds that OWCP, in its October 10, 2019 decision, properly exercised
its discretionary authority by noting that it had considered the matter and denied appellant’s request

10

5 U.S.C. § 8124(b)(1).

11

20 C.F.R. §§ 10.616, 10.617, and 10.618.

12

Id. at § 10.616(a).

13

J.T., Docket No. 18-0664 (issued August 12, 2019); Eddie Franklin, 51 ECAB 223 (1999); Delmont L.
Thompson, 51 ECAB 155 (1999).
14

Under OWCP’s regulations and procedures, the timeliness of a request for a hearing is determined on the basis
of the postmark of the envelope containing the request. Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings
and Reviews of the Written Record, Chapter 2.1601.4(a) (October 2011). If the postmark is illegible, the request will
be deemed timely unless OWCP has kept evidence of date of delivery on the record reflecting that the request is
untimely. Id.
15

See M.M., Docket No. 19-1171 (issued October 22, 2019); William F. Osborne, 46 ECAB 198 (1994).

4

for an oral hearing as his claim could be equally well addressed through a reconsideration
application.
The Board has held that the only limitation on OWCP’s authority is reasonableness. An
abuse of discretion is generally shown through proof of manifest error, clearly unreasonable
exercise of judgment, or actions taken which are contrary to both logic and probable deduction
from established facts. 16 The Board finds that the evidence of record does not establish that OWCP
abused its discretion in denying appellant’s request for an oral hearing before an OWCP hearing
representative.17
CONCLUSION
The Board finds that appellant has not established permanent impairment of a scheduled
member or function of the body warranting a schedule award. The Board further finds that OWCP
properly denied his September 26, 2019 request for an oral hearing as untimely filed pursuant to 5
U.S.C. § 8124(b).
ORDER
IT IS HEREBY ORDERED THAT the October 10 and August 22, 2019 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 18, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

16

T.G., Docket No. 19-0904 (issued November 25, 2019); see Daniel J. Perea, 42 ECAB 214, 221 (1990).

17

J.G., Docket No. 19-0555 (issued March 14, 2019).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Seattle, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-2038
Issued: February 6, 2008

Case Submitted on the Record

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

JURISDICTION
On July 30, 2007 appellant timely appealed a June 21, 2007 merit decision of the Office
of Workers’ Compensation Programs denying her occupational disease 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 appellant has met her burden of proof to establish that her diagnosed
conditions were causally related to factors of her federal employment.
FACTUAL HISTORY
On March 27, 2007 appellant, a 36-year-old mail carrier, filed a Form CA-2, notice of
occupational disease, claiming that she sustained pain in her back and left shoulder as a result of
lifting, pulling, and pushing buckets through a van and into buildings. She realized her condition
was related to her federal employment on March 13, 2007.

In an April 5, 2007 letter, the Office requested that appellant submit additional evidence
she believed contributed to her condition. The Office instructed her to submit comprehensive
medical reports from her physician which included a diagnosis and the physician’s opinion
supported by a medical explanation as to how appellant’s federal employment caused or
aggravated the claimed injury.
In response, appellant provided an April 11, 2007 statement describing her job duties.
She also submitted duty status reports dated March 27 to April 18, 2007 together with treatment
notes commencing April 6, 2007 from physicians with illegible signatures. The reports
diagnosed cervical, thoracic and lumbar strains. A chiropractic treatment note from April 5,
2007 diagnosed cervical, thoracic and lumbar sprain/strain, muscle spasm and trapezoids strain.
The record includes physician assistant notes from April 5, 2007 and physical therapy treatment
notes from April 2, 2007. Evidence pertaining to an anxiety condition which arose in 2000 was
also submitted.
By decision dated June 21, 2007, the Office denied appellant’s claim. It found that, while
the work-related events occurred, there was insufficient medical evidence to establish her
condition was caused by her employment.
LEGAL PRECEDENT
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) medical evidence establishing the
presence or existence of a condition for which compensation is claimed; (2) a factual statement
identifying employment factors alleged to have caused or contributed to the condition; and
(3) medical evidence establishing that the employment factors identified by the employee were
the proximate cause of the condition or illness, for which compensation is claimed or stated
differently, medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the employee.1
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical evidence. Rationalized medical evidence is medical evidence
which includes a physician’s rationalized medical opinion on the issue of whether there is a
causal relationship between an employee’s diagnosed conditions and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed conditions
and the specific employment factors identified by the employee.2
An award of compensation may not be based on appellant’s belief of causal relationship.
Neither the mere fact that a disease or condition manifests itself during a period of employment,

1

Donna L. Mims, 53 ECAB 730 (2002).

2

Id.

2

nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish a causal relationship.3
ANALYSIS
The Board finds that appellant has failed to establish her claim because she failed to
provide sufficient medical evidence to establish that her back or left shoulder conditions were
caused or contributed to by factors of her federal employment.
Appellant submitted medical reports and treatment notes from physicians with illegible
signatures which diagnosed cervical, thoracic and lumbar strains. However, these reports do not
contain any rationalized medical opinion supporting that her employment duties caused her
diagnosed conditions. Appellant also submitted reports from her chiropractor, who diagnosed
cervical, thoracic and lumbar sprain/strains, muscle spasm and trapezoids strain. However, such
reports are of no probative value. A chiropractor is only considered a “physician” under the Act
to the extent that he or she diagnosed a spinal subluxation as demonstrated by x-ray.4 As
appellant’s chiropractor did not diagnose a spinal subluxation as demonstrated by x-ray, he or
she is not considered a physician.5 The Office also received treatment notes from a physician’s
assistant and physical therapists. However, providers such as nurses, acupuncturists, physician’s
assistants and physical therapists are not physicians under the Act. Thus, their opinions do not
constitute medical evidence and have no weight or probative value.6 The other evidence
submitted by appellant pertaining to an emotional condition does not pertain to her claimed back
and left shoulder conditions.
The Board finds that appellant has failed to submit reliable, substantial and probative
medical evidence sufficient to establish her claimed back and left shoulder conditions are
causally related to her employment factors. The Board has held that the mere fact that a
condition manifests itself during a period of employment does not raise an inference that there is
a causal relationship between the two.7 Neither the fact that the condition became apparent
during a period of employment nor the belief that the condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.8 Causal
relationship must be substantiated by reasoned medical opinion evidence, which is appellant’s
responsibility to submit.

3

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

4

See 5 U.S.C. § 8101(2).

5

See Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board held that medical opinion, in general, can
only be given by a qualified physician).
6

See Thomas R. Horsfall, 48 ECAB 180 (1996); Jan A. White, 34 ECAB 515, 518 (1983). See 5 U.S.C.
§ 8101(2). This subsection defines the term physician. See also Charley V.B. Harley, supra note 5.
7

See Joe T. Williams, 44 ECAB 518, 521 (1993).

8

Id.

3

As there is no reasoned medical evidence explaining how appellant’s employment duties
caused or aggravated her back or left shoulder condition, she has not met her burden of proof in
establishing that she sustained a medical condition in the performance of duty causally related to
factors of her employment.
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
sustained a back or left shoulder condition causally related to factors of her employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 21, 2007 is affirmed.
Issued: February 6, 2008
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., claiming as widow of C.P., Appellant
and
DEPARTMENT OF AGRICULTURE, FOREST
SERVICE, MT. BAKER SNOQUALMIE,
Mountlake Terrace, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-64
Issued: August 10, 2009

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 9, 2008 appellant filed a timely appeal of the July 14, 2008 merit decision of
an Office of Workers’ Compensation Programs’ hearing representative finding that she received
an overpayment of compensation for which she was without fault and directed repayment from
continuing compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment in the amount of
$57,764.80 for the period September 25, 1993 through October 2, 2004; (2) whether the Office
properly denied waiver of recovery of the overpayment; and (3) whether the Office properly
directed repayment at the rate of $500.00 every 28 days from appellant’s continuing
compensation payments. On appeal, appellant does not contest fact or amount of the
overpayment. She contends that the Office erred in failing to grant waiver of the recovery of the
overpayment.

FACTUAL HISTORY
The record reveals that appellant’s husband, the employee, died in the performance of
duty on September 25, 2003 when he fell off a bridge. At the time of his death, the employee
was covered by Federal Employees’ Retirement Systems (FERS), part Social Security Act and
part Office of Personnel Management. On October 5, 1993 appellant filed a claim for death
benefits (Form CA-5). At the time of her application, she and her two minor daughters were in
receipt of death benefits from the Social Security Act in the amount of $1,487.00 per month. On
October 1, 1994 appellant elected to receive compensation under the Federal Employees’
Compensation Act effective September 26, 1993 in lieu of Social Security Act benefits.1 The
Office paid compensation to appellant and her daughters effective September 15, 1993.
On May 17, 2007 the Office notified appellant of its preliminary determination that she
received an overpayment of compensation in the amount of $57,764.80 for the period
September 25, 1993 to October 2, 2004 due to its failure to reduce compensation by the amount
of the employee’s benefits attributable to his employment under FERS. It informed appellant
that she was at fault in the creation of the overpayment as she was aware or should have been
reasonably aware that she received an incorrect payment. The Office determined that the FERS
offset was not made for the correct amount from September 25, 1993 to December 31, 1999 or
January 1, 2000 to October 2, 2004. It noted that the amount FERS offset during the stated
periods was $30,873.20 while the correct amount of the offset should have been $88,638.00.
The difference in amounts resulted on an overpayment of $57,764.80. Appellant was advised
that she could request a telephone conference, a final decision based on the written evidence only
or a hearing within 30 days if she disagreed that the overpayment occurred, with the amount of
the overpayment or if she believed that recovery of the overpayment should be waived. The
Office requested that she complete an accompanying overpayment recovery questionnaire (Form
OWCP-20) and submit financial documents in support thereof within 30 days.
On June 4, 2007 appellant requested a telephonic prerecoupment hearing and waiver of
the overpayment contending that she was not at fault in its creation. She also contended that
repayment of the overpayment would cause severe financial hardship. In a June 4, 2007 OWCP20 form, appellant stated that she did not have any of the incorrectly issued compensation checks
in her possession. She was not aware that she received incorrect payments and noted that the
overpayment did not occur as a result of any error on her part. Every year, appellant reported
any changes in the status of her dependents and their receipt of Social Security Act benefits. She
reported monthly income of $5,252.00 which represented $882.00 in Social Security Act
benefits, $1,762.00 in compensation benefits under the Federal Employees’ Compensation Act
and $2,608.00 in salary. Appellant also reported monthly expenses of $5,222.00 which included
$1,972.00 for mortgage and property taxes, $600.00 for food, $200.00 for clothing, $456.00 for
utilities, $500.00 for life insurance premiums and credit card payments, $600.00 for automobile
insurance, transportation to work and medical and dental costs, $444.00 for a student loan and
$450.00 for a home equity loan. She had $120.00 cash on hand and $3,100.00 in a checking

1

On October 7, 1994 the Office stated that appellant had withdrawn her claim for Social Security Act death
benefits and refunded all the benefits she had received.

2

account, totaling $3,220.00. Appellant also listed $100,000.00 in a Federal Employees’ Thrift
Savings Plan account. She submitted supporting financial documents.
By decision dated July 14, 2008, an Office hearing representative finalized the
overpayment. However, appellant was found without fault in creation of the overpayment. The
hearing representative found no evidence that she made an incorrect statement as to a material
fact governing her entitlement to compensation or that she failed to furnish information
necessary to the correct computation of her compensation. She denied waiver of recovery of the
overpayment, finding that appellant had monthly income of $5,333.00 and expenses of $5,222.00
which established that her monthly income exceeded her monthly expenses.2 Appellant also had
over $100,000.00 in assets. The hearing representative directed recovery of the overpayment at a
rate of $500.00 per month from her continuing compensation payments.3
LEGAL PRECEDENT -- ISSUE 1
Section 8116(d)(2) of the Federal Employees’ Compensation Act4 provides for
limitations on the right to receive compensation and states in pertinent part:
“(d) Notwithstanding the other provisions of this section, an individual receiving
benefits for disability or death under this subchapter who is also receiving benefits
under subchapter III of chapter 84 of this title or benefits under title II of the
Social Security Act shall be entitled to all such benefits, except that --”
***
“(2) in the case of benefits received on account of age or death under title II of the
Social Security Act, compensation payable under this subchapter based on the
federal service of an employee shall be reduced by the amount of any such social
security benefits payable that are attributable to [f]ederal service of that employee
covered by chapter 84 of this title.”5

2

The hearing representative noted that appellant received monthly compensation under the Federal Employees’
Compensation Act in the amount of $1,843.45 every 28 days.
3

Following the issuance of the hearing representative’s July 14, 2008 decision, appellant submitted additional
evidence. The Board may not consider evidence for the first time on appeal which was not before the Office at the
time it issued the final decision in the case. 20 C.F.R. § 501.2(c).
4

5 U.S.C. § 8116(d)(2).

5

Id.; see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4e,
2.1000.11(a)-(b) (January 1997); FECA Bulletin No. 97-9 (issued February 3, 1997) (Federal Employees’
Compensation Act benefits have to be adjusted for the FERS portion of the Social Security Act benefits, the portion
of the Social Security Act benefit earned as a federal employee is part of the FERS retirement package and the
receipt of the Federal Employees’ Compensation Act benefits and federal retirement concurrently is a prohibited
dual benefit).

3

ANALYSIS -- ISSUE 1
Appellant’s husband died in the performance of duty on September 25, 2003 when he fell
off a bridge. At the time of the employee’s death, he was covered by FERS. On October 5, 1993
appellant filed a claim form for death benefits and on October 1, 1994, elected to receive
compensation benefits under the Federal Employees’ Compensation Act rather than Social
Security Act death benefits effective September 26, 1993. The record establishes that the
amount of compensation paid to her was not correctly offset by the employee’s Social Security
Act benefits attributable to her husband’s employment under FERS during the period
September 25, 1993 to December 31, 1999 and that no FERS offset was made during the period
January 1, 2000 to October 2, 2004. The Board finds that this created an overpayment in
compensation for the period September 25, 1993 to October 2, 2004 in the amount of
$57,764.80. The record contains an Office overpayment worksheet calculating the overpayment
during the time frame in question. Appellant does not dispute that she received the overpayment
or the amount. The Office explained how the overpayment occurred and provided the
accounting to her with the preliminary notice of overpayment. The Board finds that appellant
received a $57,764.80 overpayment of compensation from September 25, 1993 to
October 2, 2004.
LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by the Office is a matter
that rests within the Office’s discretion pursuant to statutory guidelines.6 Section 8129(b) of the
Federal Employees’ Compensation Act7 provides that an overpayment of compensation shall be
recovered by the Office unless incorrect payment has been made to an individual who is without
fault and when adjustment or recovery would defeat the purpose of the Federal Employees’
Compensation Act or would be against equity and good conscience.8
Section 10.436 of the implementing regulations9 provide that recovery of an overpayment
would defeat the purpose of the Federal Employees’ Compensation Act if such recovery would
cause hardship to a currently or formerly entitled beneficiary because: the beneficiary from
whom the Office seeks recovery needs substantially all of his or her current income (including
compensation benefits) to meet current or ordinary and necessary living expenses; and (b) the
beneficiary’s assets do not exceed a specified amount as determined by the Office from data
furnished by the Bureau of Labor Statistics.10 An individual is deemed to need substantially all
6

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

7

5 U.S.C. § 8129(b).

8

Michael H. Wacks, 45 ECAB 791, 795 (1994).

9

20 C.F.R. § 10.436.

10

An individual’s assets must exceed a resource based on $4,800.00 for an individual or $8,000.00 for an
individual with a spouse or one dependent plus $960.00 for each additional dependent. This base includes all of the
individual’s assets not exempt from recoupment. See Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Initial Overpayment Actions, Chapter 6.6(a)(1)(b) (December 23, 2004).

4

of his or her income to meet current ordinary and necessary living expenses if monthly income
does not exceed monthly expenses by more than $50.00.11
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship in attempting to repay the debt; and when an individual, in reliance on
such payments or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.12
Section 10.438 of the regulations provide that the individual who received the
overpayment is responsible for providing information about income, expenses and assets as
specified by the Office. This information is needed to determine whether or not recovery of an
overpayment would defeat the purpose of the Federal Employees’ Compensation Act or be
against equity and good conscience. Failure to submit the requested information within 30 days
of the request shall result in the denial of waiver.13
ANALYSIS -- ISSUE 2
The Office hearing representative found that appellant was not at fault in the creation of
the overpayment. In determining that appellant was not entitled to waiver of the overpayment,
she reviewed appellant’s income, expenses and assets as listed in her June 4, 2007
OWCP-20 form. Appellant had monthly income of $5,330.00, monthly expenses of $5,222.00
and $103,220.00 in assets. Office procedures provide that an individual is deemed to need
substantially all of his or her current income to meet current ordinary and necessary living
expenses if monthly income does not exceed monthly expenses by more than $50.00.14 The
Board finds that, as appellant’s monthly income of $5,333.00 exceeds her monthly expenses of
$5,222.00 by $111.00, she is not entitled to waiver as she does not need substantially all of her
income to meet current ordinary and necessary expenses. Moreover, she has $100,000.00 in
other assets.15
There is no evidence that appellant relinquished a valuable right or changed her position
for the worse in reliance on the excess compensation she received for the period September 25,
1993 through October 2, 2004. The Board finds that, pursuant to its regulations, the Office
properly determined that recovery of the overpayment would not be against equity or good
conscience.

11

See Sherry A. Hunt, 49 ECAB 467, 473 (1998).

12

20 C.F.R. § 10.437.

13

Id. at § 10.438.

14

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6(a)(3) (October 2004).
15

See Eloise K. Hahn, Docket No 01-1199 (issued June 25, 2002) (the employee’s contribution to the Thrift
Savings Plan, and the contribution’s earnings, are considered assets for purposes of determining waiver).

5

LEGAL PRECEDENT -- ISSUE 3
The amount of adjustment of continuing compensation to recover an overpayment lies
within the Office’s discretion. The analysis that determines the amount of adjustment is
substantially the same as that used to determine waiver.16 With regard to the amount withheld
from appellant’s continuing compensation payments to recover the amount of the overpayment,
section 10.441(a) of Office regulations provides:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to [the Office] the amount of the
overpayment as soon as the error is discovered or his or her attention is called to
same. If no refund is made, [the Office] shall decrease later payments of
compensation, taking into account the probable extent of future payments, the rate
of compensation, the financial circumstances of the individual and any other
relevant factors, so as to minimize any hardship.”17
ANALYSIS -- ISSUE 3
The Office found that appellant could repay the overpayment by withholding $500.00
every 28 days from her continuing compensation. It took into consideration the financial
information appellant submitted and, the factors set forth in sections 10.433 and 10.434,18 in
order to determine a rate of that recovery minimized any resulting hardship. The Office
considered the amount of appellant’s assets and determined that her monthly income exceeded
her monthly expenses.19 Therefore, it properly required repayment of the overpayment by
deducting $500.00 from appellant’s continuing compensation payments every 28 days.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $57,764.80, during the period September 25, 1993 to October 2, 2004. The Board further
finds that the Office properly denied waiver of recovery of the overpayment. The Board also
finds that it properly directed recovery of the overpayment by deducting $500.00 from
appellant’s continuing compensation payments.

16

Howard R. Nahikian, 53 ECAB 406 (2002).

17

20 C.F.R. § 10.441(a).

18

Id. at §§ 10.433, 10.434.

19

Appellant’s resource base also greatly exceeds that required to demonstrate hardship in repaying the debt. See
Eloise K. Hahn, supra note 15.

6

ORDER
IT IS HEREBY ORDERED THAT the July 14, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 10, 2009
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Detroit, MI,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 18-0336
Issued: May 29, 2019

Case Submitted on the Record

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

JURISDICTION
On December 5, 2017 appellant, through counsel, filed a timely appeal from a
September 18, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. §§ 8101-8193 (2006).

3
The Board notes that, following the September 18, 2017 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish permanent
impairment of his lower extremities entitling him to a schedule award.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances of the case
as set forth in the Board’s prior decisions are incorporated herein by reference. The relevant facts
are as follows.
Appellant, a 57-year-old custodian, injured his low back on May 4, 2009 when he lifted a
bucket of water. OWCP accepted his claim for sciatica and lumbar radiculopathy. On
September 16, 2010 appellant filed a claim for a schedule award (Form CA-7). OWCP denied the
claim on November 1, 2012 and a representative of OWCP’s Branch of Hearings and Review
affirmed the denial on April 8, 2013. Appellant appealed to the Board. By decision dated
February 18, 2014, the Board affirmed the hearing representative’s decision.5 Appellant timely
requested reconsideration and submitted a November 19, 2014 impairment rating from
Dr. Catherine E. Watkins Campbell, Board-certified in family and occupational medicine, who
found 15 percent left lower extremity impairment based on motor and sensory deficits involving
the L5 and S1 nerve roots. By decision dated December 16, 2014, OWCP reviewed the merits of
the schedule award claim, but denied modification.
Appellant again appealed to the Board. By decision dated July 2, 2015, the Board
determined that the case was not in posture for decision.6 On remand OWCP referred the case to
a district medical adviser (DMA), who recommended that appellant undergo a second opinion
evaluation.
In an August 7, 2015 report, Dr. Emmanuel N. Obianwu, a Board-certified orthopedic
surgeon and OWCP-referral physician, concluded that there was no work-related spinal nerve
injury causing impairment to the lower extremities. The DMA reviewed Dr. Obianwu’s August 7,
2015 report and agreed with his findings. He found there was no basis for lower extremity
impairment under the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (A.M.A., Guides).7
By decision dated September 3, 2015, OWCP denied modification of the December 16,
2014 decision. Appellant again appealed to the Board. By decision dated April 11, 2016, the
Board found that the case was not in posture for decision because an unresolved conflict in medical
opinion existed between Dr. Watkins Campbell, appellant’s treating physician, who had
determined that appellant had 15 percent permanent impairment of the left lower extremity, and
Dr. Obianwu, an OWCP referral physician, who determined that appellant had no ratable
4

Docket No. 13-2011 (issued February 18, 2014); Docket No. 15-0606 (issued July 2, 2015); Docket No. 16-0174
(issued April 11, 2016).
5

Docket No. 13-2011 (issued February 18, 2014).

6

Docket No. 15-0606 (issued July 2, 2015).

7

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

2

impairment of the lower extremities.8 The Board remanded the case to OWCP for referral to an
impartial medical examiner.
On remand OWCP referred appellant’s case to Dr. Clifford Buchman, a Board-certified
orthopedic surgeon and OWCP impartial medical examiner (IME), for examination and opinion
on whether appellant sustained a permanent impairment of his affected extremities in accordance
with the A.M.A., Guides.9 In an October 26, 2016 report, Dr. Buchman reviewed appellant’s
medical records, including the reports of Dr. Watkins Campbell and Dr. Obianwu, appellant’s
history of injury, a statement of accepted facts (SOAF), his occupational history, and appellant’s
current work restrictions. He related appellant’s current complaints of back pain in the labral discs
and numbness of his left foot. Upon physical examination, Dr. Buchman reported that
neurovascular status of appellant’s feet was satisfactory except for some decreased sensation to
pinprick in a glove-like sensation from the calf to his foot. Supine straight leg raise testing was 60
degrees on the right pain-free and 40 degrees on the left with complaints of back pain.
Dr. Buchman diagnosed low back pain with no clinical signs of radiculopathy and noted the
accepted conditions of sciatica and radiculopathy.
Dr. Buchman reported that, based upon his examination, he did not find any spinal nerve
impairment in accordance with the A.M.A., Guides, The Guides Newsletter Rating Spinal Nerve
Extremity Impairment Using the Sixth Edition (The Guides Newsletter). He found no spinal nerve
impairment in the L3 nerve root, L4 nerve root, L5 nerve root, or S1 nerve root, either on the right
or left. Dr. Buchman related that an electromyography (EMG) study dated June 12, 2012 showed
mild chronic bilateral L5 radiculopathy without ongoing denervation and continued
electrodiagnostic evidence of mild distal axonal sensory polyneuropathy. He concluded that,
based on his clinical evaluations and the most recent EMG, appellant had no permanent
impairment according to the sixth edition of the A.M.A., Guides.
By decision dated December 6, 2016, OWCP denied appellant’s claim for a schedule
award. It found that the special weight of medical evidence rested with Dr. Buchman in his
capacity as an IME.
On December 14, 2016 appellant, through counsel, requested a telephonic hearing before
a hearing representative from OWCP’s Branch of Hearings and Review. A hearing was held on
June 15, 2017.
In letters dated April 12 to July 21, 2017, Dr. William Gonte, Board-certified in internal
medicine and sports medicine, indicated that he evaluated appellant for complaints of worsening
lower back pain radiating to the legs. Upon initial examination of appellant’s back, Dr. Gonte
reported tenderness over the left S1 joint with spasms and positive straight leg raise testing on the
left. He diagnosed lumbar radiculopathy.
Appellant received medical treatment from Dr. Eric A. Kovan, Board-certified in physical
and rehabilitation medicine, who noted, in reports dated May 17 and June 28, 2017, that
8

Docket No. 16-0174 (issued April 11, 2016).

9

OWCP initially referred appellant to Dr. Joseph Salama, a Board-certified orthopedic surgeon, for an impartial
examination, but as Dr. Salama failed to address the issue of permanent impairment in his July 29, 2016 report, OWCP
referred appellant to a new IME.

3

examination of appellant’s bilateral feet showed full range of motion and weakness on the left.
Dr. Kovan diagnosed lumbago with sciatica on the left side, acute left L5-S1 radicular pain, and
mild bilateral knee osteoarthritis.
A June 12, 2017 lumbar spine magnetic resonance imaging (MRI) scan showed a disc
bulge at L3-L4, broad-based posterior disc herniation at L4-L5 and L5-S1, and a 2.5 centimeter
complex right renal cortical cyst.
In a July 20, 2017 report, Dr. David M. Gordon, Board-certified in physical medicine and
rehabilitation, noted diagnoses of lumbago with sciatica on the left and lumbar radiculopathy.
By decision dated September 18, 2017, an OWCP hearing representative affirmed the
December 6, 2016 decision denying appellant’s schedule award claim. She found that
Dr. Buchman’s report represented the special weight of medical evidence sufficient to resolve the
conflict of medical opinion and established that there was no evidence of ratable impairment of
the lower extremities due to appellant’s work-related lumbar condition.
LEGAL PRECEDENT
The schedule award provision of FECA10 and its implementing federal regulations,11 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. FECA,
however, does not specify the manner in which the percentage of loss of a member shall be
determined. For consistent results and to ensure equal justice, the Board has authorized the use of
a single set of tables so that there may be uniform standards applicable to all claimants.12 For
schedule awards after May 1, 2009, the impairment is evaluated under the sixth edition of the
A.M.A., Guides, published in 2009.13 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.14
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment.15 For peripheral nerve impairments to the upper or
lower extremities resulting from spinal injuries, OWCP procedures indicate that the

10

5 U.S.C. § 8107.

11

20 C.F.R. § 10.404.

12

Id. at § 10.404(a).

13
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
14

D.S., Docket No. 18-1140 (issued January 29, 2019); Isidoro Rivera, 12 ECAB 348 (1961).

15

Supra note 13 at Chapter 3.700, Exhibit 4 (January 2010).

4

July/August 2009, The Guides Newsletter is to be applied.16 FECA-approved methodology is
premised on evidence of radiculopathy affecting the upper and/or lower extremities.17
FECA provides that, if there is disagreement between an OWCP-designated physician and
the employee’s physician, OWCP shall appoint a third physician who shall make an examination.18
For a conflict to arise the opposing physicians’ viewpoints must be of “virtually equal weight and
rationale.”19 Where OWCP has referred the case to an impartial medical examiner to resolve a
conflict in the medical evidence, the opinion of such a specialist, if sufficiently well reasoned and
based upon a proper factual background, must be given special weight.20
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of his lower extremities entitling him to a schedule award.
Following the Board’s last April 11, 2016 decision, OWCP prepared an updated SOAF and
properly referred appellant’s case to Dr. Buchman for an impartial medical examination in order
to resolve the conflict in medical opinion regarding whether he sustained a permanent impairment
of his lower extremities in accordance with the A.M.A., Guides, pursuant to 5 U.S.C. § 8123(a).
In an October 26, 2016 report, Dr. Buchman reviewed the history of injury and provided physical
examination findings. He noted appellant’s accepted lumbar conditions and opined that, based on
his clinical evaluations and diagnostic testing, appellant had zero impairment rating according to
the sixth edition of the A.M.A., Guides and The Guides Newsletter. The Board finds that the
opinion of Dr. Buchman is of sufficient probative value to resolve the conflict in the medical
opinion evidence.
When a case is referred to an IME for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a prior factual and medical
background, must be given special weight.21 The Board finds that Dr. Buchman’s October 26,
2016 report is entitled to special weight and established that appellant had not sustained a
permanent impairment for schedule award purposes.22
In his October 26, 2015 report, Dr. Buchman described his examination findings and
concluded that appellant had zero percent permanent impairment of his lower extremities causally
related to the accepted lumbar injury. He reviewed appellant’s history of injury, including the
SOAF, and noted no clinical signs of radiculopathy or spinal nerve impairment. Dr. Buchman
16

Id. at Chapter 3.700, Exhibit 1 (January 2010). The Guides Newsletter is included as Exhibit 4; see also G.N.,
Docket No. 10-0850 (issued November 12, 2010).
17

Supra note 13 at Chapter 2.808.5c(3) (February 2013).

18

5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994). The DMA, acting on
behalf of OWCP, may create a conflict in medical opinion. 20 C.F.R. § 10.321(b).
19

Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

20

Gary R. Sieber, 46 ECAB 215, 225 (1994).

21

Id.

22

T.C., Docket No. 17-1741 (issued October 9, 2018).

5

concluded that, based on his clinical evaluations and the most recent EMG, appellant had zero
impairment rating according to the sixth edition of the A.M.A., Guides and The Guides Newsletter.
The Board finds that Dr. Buchman’s report is detailed, well rationalized, and based on a proper
factual background. Dr. Buchman’s opinion, therefore, is entitled to the special weight accorded
an IME and has established that appellant does not have a ratable impairment of the lower
extremities causally related to his accepted lumbar injury.23
The Board further finds that the additional medical evidence submitted are insufficient to
overcome the special weight accorded to Dr. Buchman as the IME and fail to establish a ratable
permanent impairment of appellant’s lower extremities. The additional letters and reports by
Dr. Gonte, Dr. Kovan, and Dr. Gordon, are insufficient to establish a ratable permanent
impairment as none of the physicians provided an opinion with regard to permanent impairment.24
As well the June 12, 2017 lumbar spine MRI scan lacks probative value as diagnostic tests as they
do not provide an opinion on causal relationship between the employment injuries and any
permanent impairment.25 Thus, the Board finds that the medical evidence of record fails to
establish that appellant has a permanent impairment to his lower extremities causally related to his
accepted lumbar injury. Consequently, appellant has not established entitlement to a schedule
award.
Appellant may request a schedule award or an increased schedule award at any time based
on evidence of a new exposure or medical evidence showing a progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of his lower extremities entitling him to a schedule award.

23

F.S., Docket No. 18-0383 (issued August 22, 2018); Manuel Gill, 52 ECAB 282 (2001).

24

20 C.F.R. § 10.404 (1999); see also Jacqueline S. Harris, 54 ECAB 139 (2002).

25

See generally, D.B., Docket No. 18-1359 (issued May 14, 2019) (the Board has held that reports of diagnostic
tests lack probative value as they do not provide an opinion on causal relationship between his employment incident
and a diagnosed condition).

6

ORDER
IT IS HEREBY ORDERED THAT the September 18, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 29, 2019
Washington, DC

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

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

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

7