United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Little Rock, AR, Employer
__________________________________________

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

Docket No. 20-1094
Issued: January 5, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On April 29, 2020 appellant filed a timely appeal from a March 23, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $13,720.41, for which he was without fault, as he
concurrently received Social Security Administration (SSA) age-related retirement benefits and
1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the issuance of the March 23, 2020 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.

FECA wage-loss compensation, for the period September 1, 2015 through July 20, 2019, without
an appropriate offset; (2) whether it properly denied waiver of recovery of the overpayment; and
(3) whether OWCP properly required recovery of the overpayment by deducting $300.00 every 28
days from appellant’s continuing compensation payments.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On March 26, 1993 appellant, then a 43-year-old mail carrier, filed a traumatic injury claim
(Form CA-1) alleging that on March 9, 19934 he sustained whiplash and a lower back injury when
he was rear-ended by a truck delivering mail while in the performance of duty. He stopped work
on March 10, 1993. OWCP accepted appellant’s claim for cervical sprain/strain and cervicalgia.
It paid wage-loss compensation effective June 12, 1993.
Effective August 16, 2013 appellant retired from the employing establishment due to
disability.
In a Form EN1032 dated September 21, 2015, appellant responded “Yes” indicating that
he had received retirement benefits from SSA as part of an annuity for federal service in a monthly
amount of $1,422.00. He noted that his SSA was reduced due to FECA benefits. Appellant
continued to complete EN1032 forms dated October 3, 2016; September 27, 2017; and
September 12, 2018. He responded “Yes” indicating that he received retirement benefits from
SSA as part of an annuity for federal service.
In a February 25, 2019 letter, E.S., an injury compensation specialist for the employing
establishment, informed OWCP that appellant was in the Federal Employees Retirement System
(FERS) retirement system and was entitled to receive SSA retirement benefits. She requested that
OWCP contact SSA in order to determine whether appellant’s benefits qualified for the FERS
offset and subsequent reduction of wage-loss compensation benefits.
On February 26, 2019 OWCP requested that SSA provide a dual benefits calculation.
In a form dated June 1, 2019, SSA provided OWCP with a FERS/SSA dual benefit
calculation worksheet. The form indicated that beginning September 1, 2015, appellant’s SSA
rate with FERS was $1,516.90 and without FERS was $1,228.50; that beginning December 1,
2015, his SSA rate with FERS was $1,517.80 and without FERS was $1,228.50; that beginning
December 1, 2016, appellant’s SSA rate with FERS was $1,522.00 and without FERS was
$1,232.10; that beginning December 1, 2017, his SSA rate with FERS was $1,552.00 and without

3

Docket No. 05-0326 (issued May 20, 2005).

4

The Form CA-1 noted the date of injury of March 9, 1992, which appears to be a typographical error.

2

FERS was $1,256.70; that beginning December 1, 2018, appellant’s SSA rate with FERS was
$1,595.50 and without FERS was $1,291.80.
Effective July 21, 2019, OWCP adjusted appellant’s entitlement amount and paid him at
an adjusted amount of $1,589.40 to include the offset of his SSA age-related retirement benefits
attributable to his federal service.
OWCP completed a FERS offset calculation worksheet on July 22, 2019. It calculated the
overpayment amount by determining the daily FERS offset amount and multiplying that amount
by the number of days in each period September 1, 2015 through July 20, 2019 for a total
overpayment amount of $13,720.41.
In a preliminary overpayment determination dated August 5, 2019, OWCP notified
appellant that he had received an overpayment of compensation in the amount of $13,720.41
because it had failed to reduce his wage-loss compensation benefits for the period September 1,
2015 through July 20, 2019 by the portion of his SSA benefits that were attributable to federal
service. It further advised him of its preliminary determination that he was not at fault in the
creation of the overpayment because he could not have reasonably known that an improper
payment had occurred. OWCP provided appellant an overpayment action request form and an
overpayment recovery questionnaire (Form OWCP-20). Additionally, it notified him that within
30 days of the date of the letter he could request a telephone conference, a final decision based on
the written evidence, or a prerecoupment hearing.
On August 21, 2019 appellant requested a telephonic prerecoupment hearing with OWCP’s
Branch of Hearings and Review. He requested waiver of the overpayment because he was found
to be without fault in its creation and questioned how he could explain something that he did not
have anything to do with.
In a completed Form OWCP-20 dated August 21, 2019, appellant indicated that his
monthly income included $1,589.40 in income, $2,167.00 in SSA benefits, and $479.83 in “other”
benefits, for a total of $4,236.23 in monthly income. He advised that his monthly expenses
included $1,369.06 for housing, $1,125.00 for food, $50.00 for clothing, $815.46 for utilities, and
$806.00 for other expenses. Appellant listed debts being paid by monthly installments in the
amounts of $100.00, $100.00, $100.00, and $63.00 for credit cards and existing lines of credit. He
indicated that he had assets of $23.00 in cash on hand, $2,400.00 in his checking account, $600.00
in his savings account, and $7,000.00 for the value of his truck, car, and tractor.
In an August 27, 2019 letter, appellant explained that the deduction of income meant it
would take more to live than what he made. He reported that his family had significantly depleted
their savings over the years in order to live and had sold almost everything they had.
Appellant submitted a monthly mortgage statement for $1,369.06, three checks made
payable to a creditor in the amounts of $88.09, $188.67, and $192.08; receipts for purchases in the
amounts of $148.09, $180.12, and $184.65; grocery receipts in the amount of $73.16, $33.60,
$235.74; an energy bill for $132.19; a telephone and internet bill for $91.75; a sewage and waste
bill of $87.01; a car insurance bill for $151.11; and medical bills totaling $35.96. He also provided
bank statements, which showed that he paid $150.00 for cellular service and an income tax

3

statement for 2017. Credit card statements demonstrated that he owed monthly minimum
payments of $118.00, $28.00, $51.38, and $63.00 for various bank credit cards.
Appellant also submitted handwritten notes indicating that he paid $300.00 a month for
electricity, $50.00 a month for propane, $140.00 for recreation, $50.00 for medicine, $125.00 for
miscellaneous household supplies, and $491.00 in automotive expenses.
On January 7, 2020 a telephonic prerecoupment hearing was held. Appellant’s wife
testified that the monthly income of $1,589.40 was appellant’s wage-loss compensation, the
$2,167.00 was the combined amount for her and appellant’s social security benefits, and the
$479.00 was appellant’s VA benefits. The hearing representative also discussed appellant’s
monthly expenses and credit statements.
Appellant subsequently submitted a handwritten statement. He alleged that cutting into
their monthly income would cause undue stress to him and his family. Appellant reported that
their “other” monthly expenses included $140.00 for recreation, $270.00 for gas, $35.00 for tires,
$10.00 for oil, and $25.00 for repairs. He explained that they had to budget expenses for tires, oil,
and car repairs so that they would have money when needed. Appellant also indicated that their
monthly food bill was $1,125.00. He related that he had a large family and hosted family day on
Sundays. Appellant also submitted a bill for $136.70 for satellite television.
By decision dated March 23, 2020, an OWCP hearing representative finalized the
preliminary determination that appellant had received an overpayment of compensation in the
amount of $13,720.41 because it had failed to reduce his wage-loss compensation benefits for the
period September 1, 2015 through July 20, 2019 by the portion of his SSA benefits that were
attributable to federal service. The hearing representative further found that he was not at fault in
the creation of the overpayment, but denied waiver of recovery of the overpayment because his
monthly income exceeded his monthly living expenses by more than $50.00, and thus recovery of
the overpayment would not be against equity and good conscience. OWCP’s hearing
representative further determined that the overpayment would be recovered by withholding
$300.00 every 28 days from appellant’s continuing compensation benefits, as it would afford
appellant a recoupment period similar in length to the period of the overpayment.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of 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 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States.6
Section 10.421(d) of OWCP’s implementing regulations requires that OWCP reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
5

5 U.S.C. § 8102(a).

6

Id. at § 8116.

4

attributable to the employee’s federal service.7 FECA Bulletin No. 97-09 provides that FECA
benefits have to be adjusted for the FERS portion of SSA benefits because the portion of the SSA
benefit earned as a federal employee is part of the FERS retirement package, and the receipt of
FECA benefits and federal retirement concurrently is a prohibited dual benefit.8
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $13,720.41, because he concurrently received SSA age-related
retirement benefits while receiving FECA wage-loss compensation benefits for the period
September 1, 2015 through July 20, 2019 without an appropriate offset.9
The evidence of record indicates that, while appellant was receiving compensation for
wage-loss compensation benefits under FECA, he was also receiving SSA age-related retirement
benefits based upon his federal service. A claimant cannot receive both compensation for wageloss compensation benefits under FECA and SSA age-related retirement benefits attributable to
federal service for the same period.10 The information provided by SSA established that appellant
received SSA age-retirement benefits that were attributable to federal service during the period
September 1, 2015 through July 20, 2019. Consequently, the fact of overpayment has been
established.
To determine the amount of the overpayment, the portion of SSA’s benefits that were
attributable to federal service must be calculated. OWCP received documentation from SSA with
respect to the specific amount of SSA age-related retirement benefits that were attributable to
federal service. SSA provided its rate with FERS and without FERS for specific periods from
September 1, 2015 through July 20, 2019. OWCP provided its calculations for each relevant
period based on SSA’s worksheet.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period September 1, 2015 through July 20, 2019 and finds that an overpayment of compensation
in the amount of $13,720.41 was created.11
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience.12
7

20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018); L.J., 59 ECAB 264 (2007).

8

FECA Bulletin No. 97-09 (February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).

9

R.C., Docket No. 19-0845 (issued February 3, 2020); A.F., Docket No. 19-0054 (issued June 12, 2019).

10

Supra note 7.

11

See E.L., Docket No. 20-0723 (issued October 15, 2020); L.W., Docket No. 19-0787 (issued October 23, 2019).

12

5 U.S.C. § 8129(a) - (b).

5

Thus, a finding that appellant was without fault does not automatically result in waiver of the
overpayment. OWCP must then exercise its discretion to determine whether recovery of the
overpayment would defeat the purpose of FECA or would be against equity and good conscience.13
Section 10.436 of OWCP’s implementing regulations provides that recovery of an
overpayment would defeat the purpose of FECA if such recovery would cause hardship because
the beneficiary from whom OWCP seeks recovery needs substantially all of his or her current
income (including compensation benefits) to meet current ordinary and necessary living expenses
and, also, if the beneficiary’s assets do not exceed a specified amount as determined by OWCP
from data provided by the Bureau of Labor Statistics.14 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 $50.00.15
Section 10.437 of OWCP’s implementing regulations provides that recovery of an
overpayment is considered to be against equity and good conscience when an individual who
received an overpayment would experience severe financial hardship attempting to repay the debt;
and when an individual, in reliance on such payments or on notice that such payments would be
made, gives up a valuable right or changes his or her position for the worse.16 OWCP’s procedures
provide that, to establish that a valuable right has been relinquished, an individual must
demonstrate that the right was in fact valuable, that he or she was unable to get the right back, and
that his or her action was based primarily or solely on reliance on the payment(s) or on the notice
of payment.17
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant not at fault in the creation of the overpayment, waiver must be
considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience.18 It considered his
financial information to determine if recovery of the overpayment would defeat the purpose of
FECA.

13

L.S., 59 ECAB 350 (2008).

14

20 C.F.R. § 10.436. OWCP’s procedures provide that the assets must not exceed a resource base of $6,200.00
for an individual or $10,300.00 for an individual with a spouse or dependent plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4a(1) & (2) (September 2018).
15

Federal (FECA) Procedure Manual at Chapter 6.400.4(a)(3) (September 2018).

16

20 C.F.R. § 10.437; see E.H., Docket No. 18-1009 (issued January 29, 2019).

17

Supra note 15 at Chapter 6.400.4(c)(3) (September 2018).

18

Supra note 13.

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The Board finds that OWCP properly determined that appellant did not require
substantially all of his income to meet ordinary living expenses. OWCP found that, after its review
of the documents of record, he had total current monthly income of $4,250.86, which included
$1,604.03 in wage-loss compensation benefits, $479.83 in VA benefits, and $2,167.00 for his and
his wife’s social security benefits. Although appellant had listed $1,589.40 on his completed Form
OWCP-20, a review of appellant’s wage-loss compensation history showed that he was receiving
$1,604.03 in wage-loss compensation benefits. Appellant also reported monthly expenses of
$1,369.06 for housing, $1,125.00 for food, $50.00 for clothing, $815.46 for utilities, and $806.00
for other expenses. He noted monthly payments on various bank credit cards of $100.00, $100.00,
$100.00, and $63.00. OWCP’s hearing representative, however, reduced appellant’s monthly food
expenses to $650.00 based on information from the Bureau of Labor and Statistics. The hearing
representative also determined that statements and financial documentation confirmed $812.46 for
utilities, $50.00 for medication, $151.00 for car insurance, $270.00 for gas, and $125.00 in
household and personal hygiene supplies. OWCP’s hearing representative noted that credit card
statements showed minimum credit payments of $118.00, $28.00, $51.38, and $63.00.19 Thus, the
amount of appellant’s new household monthly expenses totaled $3,727.90, which left $512.96 of
disposable income with which to repay the debt. As appellant’s monthly income exceeds his
ordinary and necessary living expenses by more than $50.00, the Board finds that he did not need
substantially all of his income for ordinary and necessary living expenses.20
The Board also finds that OWCP properly determined that recovery of the overpayment
would not be against equity and good conscience. Appellant has not submitted evidence to
establish that he would experience severe financial hardship in attempting to repay the debt or that
he relinquished a valuable right or changed his position for the worse in reliance on the payment
which created the overpayment.21 On appeal he argues that repaying the overpayment would put
burden and stress on himself and his wife. As explained above, however, the evidence of record
demonstrates that appellant would not face financial hardship as his monthly income exceeds his
ordinary and necessary living expenses by over $50.00.22
As appellant failed to establish that recovery of the overpayment of compensation would
either defeat the purpose of FECA or be against equity and good conscience, the Board finds that
OWCP did not abuse its discretion in denying waiver of recovery of the overpayment.

19
The Board notes that OWCP’s hearing representative incorrectly noted a minimum monthly payment of $53.00
for one of his bank credit cards.
20

See R.F., Docket No. 20-0159 (issued October 15, 2020); M.C., Docket No. 19-0699 (issued February 12, 2020).

21

Supra note 17.

22

R.B., Docket No. 19-0571 (issued June 12, 2020); see also D.M., Docket No. 17-0810 (issued October 2, 2017).

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LEGAL PRECEDENT -- ISSUE 3
Section 10.441(a) of OWCP’s regulations23 provides in pertinent part:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP 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, OWCP 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.”24
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$300.00 every 28 days from appellant’s continuing compensation.
In the March 23, 2020 decision, OWCP’s hearing representative took into consideration
the financial information appellant submitted as well as the factors set forth in 20 C.F.R. § 10.441
and found that this method of recovery would minimize resulting hardship as the period of the
repayment would be similar in length to the period in which the overpayment had been created.
The Board therefore finds that OWCP properly required recovery of the overpayment from
appellant’s continuing compensation payments by deducting $300.00 every 28 days.25
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$13,720.41, for which he was without fault, because he concurrently received FECA benefits and
SSA age-related retirement benefits, for the period September 1, 2015 through July 20, 2019,
without an appropriate offset. The Board further finds that OWCP properly denied waiver of
recovery of the overpayment and properly required recovery of the overpayment by deducting
$300.00 every 28 days from his continuing compensation payments.

23

20 C.F.R. § 10.441(a).

24

Id.; see C.M., Docket No. 19-1451 (issued March 4, 2020).

25
See J.R., Docket No. 17-0181 (issued August 12, 2020); T.G., Docket No. 17-1989 (issued June 5, 2018); M.D.,
Docket No. 11-1751 (issued May 7, 2012).

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ORDER
IT IS HEREBY ORDERED THAT the March 23, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 5, 2021
Washington, DC

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

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

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

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

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

Docket No. 10-639
Issued: November 2, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 19, 2010 appellant filed a timely appeal from a November 19, 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 merit of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment in compensation in the
amount of $48,432.33 because she received a lump-sum schedule award payment and continued
to receive periodic payments of the schedule award; and (2) whether the Office properly
determined that she was at fault in accepting the overpayment and was therefore not entitled to
waiver.
On appeal, appellant asserts that she thought she was given an additional award for her
left knee.

FACTUAL HISTORY
On April 1, 2004 appellant, then a 39-year-old rural carrier associate, sustained injuries to
her right wrist and left knee when she slipped and fell while delivering mail.1 She underwent
numerous surgical procedures on her right wrist and left knee and was totally disabled for
intermittent periods. On February 1, 2008 appellant filed a schedule award claim and in a
February 8, 2008 decision, was granted a schedule award for a 45 percent impairment of the right
upper extremity and a 10 percent impairment of the left lower extremity. The schedule award
was for a total of 169.2 weeks, to run from December 28, 2007 to March 26, 2011.
Appellant, through her attorney, advised the Office that she wanted her schedule award
paid in a lump sum. A periodic schedule award payment of $2,039.26 was made on February 6,
2008 for the period December 28, 2007 through January 19, 2008 and payments of $2,549.07
each were made on February 16 and March 16, 2008 for the periods January 20 through
February 16, 2008 and February 17 through March 15, 2008 respectively. In a February 20,
2008 letter, the Office informed appellant that a lump sum in her case would total $94,766.49 as
of March 16, 2008. Appellant was informed that this lump sum would represent “full and final
compensation payment for the period of the award even if you suffer a recurrence of total
disability.” On February 23, 2008 she signed an agreement to proceed with the lump-sum
settlement of her schedule award. The agreement stated that appellant agreed to accept the sum
of $94,766.49 in payment of compensation for the commuted value of further installments of
compensation for the remainder of the schedule award payable from March 16, 2008 to
March 26, 2011 and “that I understand and agree that payment of such lump sum will represent
full and final settlement of my schedule award for the period noted above in connection with my
injury of April 1, 2004 and that no further monetary compensation benefits will be extended to
me for the duration of the schedule award.” On March 21, 2008 the Office issued a payment of
$94,766.49 as a lump-sum payment for appellant’s schedule award. Appellant retired on
disability effective June 4, 2008. The record shows that the Office made an additional 19
periodic schedule award payments of $2,549.07 each, covering the period March 16, 2008 to
August 29, 2009, for a total of $48,432.33.
By letter dated September 14, 2009, the Office issued a preliminary determination that
appellant had received an overpayment in compensation in the amount of $48,432.33. It noted
that she continued to receive periodic schedule award compensation benefits for the period
March 16, 2006 to August 29, 2009, after she received a lump-sum payment for the period
March 16, 2006 to March 25, 2011. The Office found appellant to be at fault in the creation of
the overpayment because she accepted payments that she knew or should have known were
incorrect.
On September 28, 2009 appellant requested a telephone conference and submitted an
overpayment questionnaire. By decision dated October 16, 2009, the Office finalized the
overpayment and in an October 23, 2009 letter, vacated the decision, noting that she had
1

The accepted conditions are contusion of left knee, contusion of right wrist, left knee sprain of cruciate ligament,
old disruption of left anterior cruciate ligament, villonodular synovitis of the left lower leg and secondary malignant
neoplasm of the bone and bone marrow, right. The record does not contain a diagnosis of secondary malignant
neoplasm of the bone and bone marrow.

2

requested a telephone conference. A telephone conference was held on October 29, 2009.
Appellant stated that she thought that, because she had a new functional capacity evaluation, she
was entitled to an additional schedule award after the lump sum was paid and that she had
telephoned to ask if she was entitled to the money. Her finances were discussed in reference to
recovery of the overpayment.
By decision dated November 19, 2009, the Office finalized the determination that an
overpayment in compensation in the amount of $48,432.33 had been created and that appellant
was at fault because she knowingly accepted compensation to which she was not entitled. A
repayment schedule of $300.00 a month was established.
LEGAL PRECEDENT -- ISSUE 1
Section 10.422(b) of the Office’s regulations provide that the Office, in its exercise of
discretion afforded under section 8135(a) of the Federal Employees’ Compensation Act,2 may
make a lump-sum payment to an employee entitled to a schedule award under section 8107 when
such a payment is in the employee’s best interest.3 Section 8116(a) of the Act provides:
“(a) While an employee is receiving compensation under this subchapter or if he
has been paid a lump sum in commutation of installment payments until the
expiration of the period, during which the installment payments would have
continued, he may not receive salary, pay or remuneration of any type from the
United States, except -(1) In return for service actually performed;
(2) Pension for service in the Army, Navy or Air Force;
(3) Other benefits administered by the Department of Veterans Affairs
unless such benefits are payable for the same injury or the same death; and
(4) Retired pay, retirement pay, retainer pay, or equivalent pay for service
in the Armed Forces or other uniformed services, subject to the reduction
of such pay in accordance with section 5532(b) of [T]itle 5, United States
Code.
“However, eligibility for or receipt of benefits under subchapter III of [C]hapter
83 of this title or another retirement system for employees of the Government,
does not impair the right of the employee to compensation for scheduled
disabilities specified by section 8107(c) of this title.”4

2

5 U.S.C. § 8135(a).

3

Id. at § 8107; 20 C.F.R. § 10.422(b).

4

Id. at § 8116(a); see Jorge O. Diaz, 51 ECAB 124 (1999).

3

ANALYSIS -- ISSUE 1
On February 8, 2008 the Office granted appellant a schedule award for a 45 percent
permanent impairment of her right upper extremity and a 10 percent permanent impairment of
her left lower extremity, for a total of 169.2 weeks of compensation, to run from December 28,
2007 to March 26, 2011. Appellant received schedule award compensation of $2,039.26 on
February 6, 2008 for the period December 28, 2007 through January 19, 2008 and payments of
$2,549.07 each on February 16 and March 16, 2008 for the periods January 20 through
February 16, 2008 and February 17 through March 15, 2008 respectively. She requested that her
schedule award be paid in a lump sum and by letter dated February 20, 2008, the Office
informed her that a lump sum in her case would total $94,766.49 as of March 16, 2008 and that
this lump sum would represent “full and final compensation payment for the period of the award
even if you suffer a recurrence of total disability.” On March 21, 2008 the Office issued a
payment of $94,766.49 as a lump-sum payment for her schedule award. Its computer print-outs
show that it made 19 additional periodic schedule award payments of $2,549.07 each, covering
the period March 16, 2008 to August 29, 2009, for a total of $48,432.33. As appellant had
received $94,766.49 as a lump-sum payment for “full and final compensation for the period of
the [schedule] award” for the April 1, 2004 employment injury and subsequently received 19
additional periodic payments totaling $48,432.33 to which she was not entitled, the Board
findings that an overpayment in compensation in the amount of $48,432.33 was created.5
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act provides that an overpayment in 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 Act or would be against equity and
good conscience.”6
Section 10.433(a) of the Office’s regulations provide that the Office:
“May consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of
compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she receives from the Office are proper. The recipient must
show good faith and exercise a high degree of care in reporting events which may
affect entitlement to or the amount of benefits. A recipient who has done any of
the following will be found to be at fault in creating an overpayment: (1) Made
an incorrect statement as to a material fact which he or she knew or should have
known to be incorrect; or (2) Failed to provide information which he or she knew
or should have known to be material; or (3) Accepted a payment which he or she

5

E.V., 59 ECAB 258 (2007).

6

Id. at § 8129; see Linda E. Padilla, 45 ECAB 768 (1994).

4

knew or should have known to be incorrect. (This provision applies only to the
overpaid individual).”7
ANALYSIS -- ISSUE 2
In this case, the Office applied the third standard in determining that appellant was at
fault in the creation of the overpayment in compensation in the amount of $48,432.33. In order
for it to establish that appellant was at fault in creating the overpayment, it must establish that at
the time she received the compensation in question, she knew or should have know that the
payments were incorrect.8
Even though the Office may have been negligent in making incorrect payments following
the lump-sum schedule award, this does not excuse appellant from accepting payments she knew
or should have known to be incorrect.9 Its February 20, 2008 letter, clearly advised her that the
lump-sum payment pursuant to her schedule award would represent the only compensation she
would receive for the period covered by the award, even if she sustained a recurrence of total
disability. The Office issued appellant a lump-sum payment on March 21, 2008 in the amount of
$94,766.49. In accepting the lump-sum payment, appellant signed a statement on February 23,
2008 acknowledging that she understood and agreed that this lump-sum payment represented full
and final settlement of her schedule award for the period March 16, 2008 to March 26, 2011 and
that she was not entitled to any further compensation for the duration of the schedule award. The
record establishes that she continued to receive periodic schedule award payments for the period
March 16, 2008 to August 29, 2009. The first payment of $2,549.09 was dated April 12, 2008.
When appellant received this payment, after receiving the lump-sum payment of $94,766.49 on
March 21, 2008 and after she was clearly informed that she was not entitled to additional
compensation, she should have known that this and the subsequent 18 additional payments were
incorrect.
On appeal, appellant contends that she was not responsible for the creation of the
overpayment because she believed the continued payments were for an increased schedule
award. This argument is not persuasive. The Board finds that the February 20, 2008 Office
letter put her on notice that the $94,766.49 lump-sum payment of her schedule award represented
the settlement of her claim and that she had no reasonable expectation of receiving additional
schedule award compensation until the period the schedule award expired on March 26, 2011.
The fact that appellant subsequently accepted periodic schedule award payments after she had
received the lump-sum settlement for her schedule award establishes that she was at fault in the
creation of the overpayment in compensation under the third criterion noted above. Based on the
evidence of record, she accepted payments she knew or should have known to be incorrect. As
the evidence establishes that appellant was at fault in the creation of the overpayment in

7

20 C.F.R. § 10.433 (1999); see Sinclair L. Taylor, 52 ECAB 227 (2001); see also id. at § 10.430.

8

See Diana L. Booth, 52 ECAB 370 (2001).

9

William E. McCarty, 54 ECAB 525 (2003).

5

compensation in the amount of $48,432.33 that occurred in this case, she was not entitled to
waiver of the overpayment.10
With respect to recovery of the overpayment in compensation, the Board’s jurisdiction is
limited to reviewing those cases where the Office seeks recovery from continuing compensation
benefits under the Act.11 As appellant is no longer receiving wage-loss compensation, the Board
does not have jurisdiction with respect to the recovery of the overpayment under the Debt
Collection Act.12
CONCLUSION
The Board finds that the Office properly determined that appellant was at fault in the
creation of an overpayment in compensation in the amount of $48,432.33.
ORDER
IT IS HEREBY ORDERED THAT the November 19, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 2, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
10

E.V., supra note 5.

11

Cheryl Thomas, 55 ECAB 610 (2004).

12

Id. The Board notes that appellant submitted additional evidence with her appeal to the Board. The Board
cannot consider this evidence, however, as its review of the case is limited to the evidence that was before the Office
at the time it rendered its final decision. 20 C.F.R. § 501.2; see Sandra D. Pruitt, 57 ECAB 126 (2005).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Elizabeth, NJ, Employer
__________________________________________
Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 14-997
Issued: September 29, 2014

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

On March 20, 2014 appellant, through counsel, filed a timely appeal of a February 7,
2014 decision of the Office of Workers’ Compensation Programs (OWCP) denying authorization
for right knee surgery.1 The Board assigned Docket No. 14-997.
On February 12, 2013 appellant, then a 54-year-old mail carrier, filed a traumatic injury
claim alleging that on February 11, 2013 she injured her right knee when she missed a step while
going up stairs to deliver a parcel. OWCP accepted the claim for right knee contusion. On
May 16, 2013 Dr. Christopher R. Ropiak, a treating Board-certified orthopedic surgeon,
requested authorization for right knee arthroscopic surgery with chondroplasty. By decision
dated July 12, 2013, OWCP denied appellant’s request for authorization for right knee surgery.
By decision dated February 7, 2014, an OWCP hearing representative affirmed the denial of
authorization for right knee surgery. The hearing representative found that appellant had
sustained a prior employment-related right knee injury on June 9, 2008. He noted that the claim
had been assigned OWCP File No. xxxxxx606 and the conditions accepted included right knee
1

The Board notes that appellant’s counsel submitted new evidence with her appeal. However, the Board may
only review evidence that was in the record at the time OWCP issued its final decision. See 20 C.F.R. § 501.2(c)(1);
M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007);
Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

sprain, medial meniscus tear and osteoarthritis. The hearing representative further noted that
appellant underwent right knee arthroscopic surgery on October 21, 2008 and
December 27, 2011.
The Board has duly considered the matter and concludes that the case is not in posture for
a decision. OWCP procedures provide that cases should be doubled when a new injury is
reported for an employee who previously filed an injury claim for a similar condition and further
indicates that the cases should be doubled as soon as the need to do so becomes apparent.2 As
the hearing representative referenced a prior claim which involved right knee conditions in
denying her request for authorization for right knee surgery, OWCP should have combined the
case files in accordance with its procedures.
As the record before the Board does not contain all the evidence from the prior claim, the
Board is unable to properly address and adjudicate the issue of appellant’s current traumatic
injury under OWCP File No. xxxxxx689.
On remand, OWCP should combine the present case record, OWCP File No. xxxxxx689,
with OWCP File No. xxxxxx606. After combining these case records on remand, OWCP should
consider the evidence contained in the combined case record and, following any necessary
further development, issue a de novo decision. Accordingly, the February 7, 2014 decision
denying authorization for right knee surgery should be set aside.

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, Doubling Case Files, Chapter 2.400.8(c)(1)
(February 2000).

2

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 7, 2014 is set aside and the case remanded for further
proceedings consistent with this order of the Board.
Issued: September 29, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Albany, NY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 13-1179
Issued: September 6, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On April 17, 2013 appellant filed a timely appeal from an October 25, 2012 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration as untimely filed and failing to establish clear evidence of error. The Board
docketed the appeal as No. 13-1179.
The Board has duly considered this matter and finds that the case is not in posture for
decision.1 This case has previously been before the Board. In a decision dated August 14, 1997,
the Board affirmed in part and modified in part an April 26, 1995 schedule award determination.2
It affirmed OWCP’s determination that appellant was not entitled to a greater than 39 percent
impairment of the left lower extremity, but found OWCP incorrectly determined the pay rate as it
had made a mathematical error. Thus, the Board modified OWCP’s decision to reflect
1

OWCP accepted that appellant, then a 42-year-old mail handler, sustained a lumbosacral strain and left shoulder
adhesive capsulitis due to an October 24, 1990 traumatic injury. It assigned claim number xxxxxx563. Under claim
number xxxxxx436 OWCP accepted that appellant sustained a back and left knee injury on August 13, 1974. Under
claim number xxxxxx161 it accepted that appellant sustained genu recurvatum with an injury date of
November 17, 1977. OWCP combined claim numbers xxxxxx563, xxxxxx436 and xxxxxx161 with xxxxxx563 as
the master file number.
2

Docket No. 95-2546 (issued August 14, 1997).

appellant’s correct pay rate. The Board, in a decision dated October 2, 1997, affirmed as
modified appellant’s weekly pay rate which OWCP calculated for a February 7, 1995 schedule
award decision.3
On November 21, 2008 appellant filed a claim for an additional schedule award. By
decision dated July 14, 2010, OWCP denied appellant’s request for an additional schedule
award, which an OWCP hearing representative affirmed by decision dated July 21, 2011. On
August 7, 2012 appellant requested reconsideration of the July 14, 2010 denial of his request for
an additional schedule award. He submitted medical evidence including a January 20, 2011
report from Dr. Bryan S. Bilfield, a Board-certified orthopedic surgeon, who provided findings
on examination. Dr. Bilfield provided an impairment rating using the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment. By decision
dated October 25, 2012, OWCP denied appellant’s request for reconsideration as untimely filed
and failing to establish clear evidence of error.
In schedule award cases, a distinction is made between an application for an additional
schedule award and a request for reconsideration of the existing schedule award. When a
claimant is asserting that the original award was erroneous based on his or her medical condition
at that time, this is a request for reconsideration. However, a claim for an additional schedule
award may be based on new exposure to employment factors or on the progression of an
employment-related condition, without new exposure, resulting in greater permanent
impairment.4
The Board finds that appellant alleged that his condition had worsened and submitted
new medical evidence regarding his current condition. The Board has repeatedly held that a
claimant may request a schedule award or increased schedule award based on evidence of a new
exposure or medical evidence showing the possible progression of an employment-related
condition resulting in permanent impairment or increased impairment.5 The Board finds,
therefore, that OWCP erroneously issued a denial of appellant’s request for reconsideration
under the clear evidence of error standard. On remand, OWCP should review and develop the
medical evidence and issue an appropriate decision regarding his request for an increased
schedule award.

3

Docket No. 95-2034 (issued October 7, 1997).

4

See B.K., 59 ECAB 228 (2007); Candace A. Karkoff, 56 ECAB 622 (2005).

5

See Linda T. Brown, 51 ECAB 115 (1999); Paul R. Reedy, 45 ECAB 488 (1994); see also B.K. supra note 4
(where it was evident that the claimant was seeking a schedule award based on new and current medical evidence,
OWCP should have issued a merit decision on the schedule award claim rather than adjudicate an application for
reconsideration).

2

IT IS HEREBY ORDERED THAT the October 25, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this order of the Board.
Issued: September 6, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Lynchburg, VA, Employer
__________________________________________

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

Docket No. 10-1044
Issued: January 12, 2011

Case Submitted on the Record

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

JURISDICTION
On March 5, 2010 appellant, through counsel, filed a timely appeal of the January 26,
2010 merit decision of the Office of Workers’ Compensation Programs denying her recurrence
of disability 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 established that she sustained a recurrence of disability on
May 25, 2009 causally related to her May 25, 2006 employment injury.
On appeal, appellant’s attorney asserts that the Office’s January 26, 2010 decision is
contrary to fact and law.

FACTUAL HISTORY
The Office accepted that on May 25, 2006 appellant, then a 51-year-old mail processing
clerk, sustained a back sprain while in the performance of duty. Following her employment
injury and total disability through June 11, 2006, she returned to regular work duties as a clerk.1
On June 1, 2009 appellant filed a claim alleging that she sustained a recurrence of
disability on May 25, 2009 due to her May 25, 2006 employment injury. She noted back pain as
she lifted heavy trays and pushed or pulled equipment. A June 2, 2009 medical report from
Dr. Harb L. Rank, an attending Board-certified family practitioner, indicated with an affirmative
mark that appellant had back pain and degenerative disc disease of the lumbar spine due to the
May 25, 2006 employment injury. He noted that she could resume light-duty work on
June 10, 2009. In a second June 2, 2009 report, Dr. Rank reiterated his opinion.
By letter dated June 11, 2009, the Office advised appellant that the evidence submitted
was insufficient to establish her recurrence of total disability claim. It requested additional
factual and medical evidence.
In an undated letter, appellant described the May 25, 2009 recurrence of disability. She
experienced low back pain while bending over a container to lift a tray of mail. Appellant noted
that around May 7, 2009 the pain intensified and her back stiffened as she lifted a tray of mail
from an all-purpose container. After several days of coping, she stopped work. Appellant noted
that she constantly swept mail that could be heavy from a machine into a tray which required
grasping the mail and turning and placing it into a tray. She also pulled racks back and forth into
place. Appellant performed her work duties 8 hours a day, 40 hours a week.
A June 17, 2009 magnetic resonance imaging scan of appellant’s lumbar spine by
Dr. Bennett A. Alford, a Board-certified radiologist, revealed slight worsening of facet
hypertrophy on the right at L5-S1 with new abnormal edema-like signal abnormality extending
from the right facet joint into the right L5 pedicle and right sacral ala resulting in mild to
moderate right foraminal stenosis at this level. There was also mild left foraminal stenosis at
L5-S1 due to facet hypertrophy. At L2-L3, there was mild central canal and mild bilateral neural
foraminal stenosis secondary to a combination of moderate disc bulge and ligamentum flavum
hypertrophy.
In reports dated June 11 and July 8, 2009, Dr. Francis H. Shen, a Board-certified
orthopedic surgeon, listed findings on physical examination and reviewed diagnostic test results.
He diagnosed lumbar degenerative disease with radicular pain, facet hypertrophy and stenosis on
the right. Hospital records dated June 2, 2009 indicated that appellant was treated in the
emergency room for a lumbosacral sprain on that date.
In a June 22, 2009 report, Dr. Rank noted appellant’s worsening chronic back pain due to
lifting and bending at work. Appellant also had chronic leg pain with right lower extremity
paresthesias, decreased range of motion in both lower extremities and marked tenderness in her
lower back. Dr. Rank stated that she was being treated for lumbar degenerative joint disease. He
1

In a June 10, 2008 letter, the Office accepted that appellant sustained a recurrence of disability on May 2, 2008.

2

found that appellant could not work because her position required pushing, twisting, kneeling,
bending, pulling and stooping. In form reports dated July 14 and August 14, 2009, Dr. Rank
indicated with an affirmative mark that her lumbar radiculopathy was causally related to the
May 25, 2006 employment injury. He advised that appellant was totally disabled from May 22
through October 30, 2009.
In a June 11, 2009 report, Dr. Michelle S. Barr, a Board-certified radiologist, found no
evidence of spondylolysis or spondylolisthesis. Appellant had mild multilevel degenerative
changes that had not significantly changed.
In a September 3, 2009 decision, the Office denied appellant’s recurrence of disability
claim. The medical evidence was found insufficient to establish that her disability on May 25,
2009 was due to the May 25, 2006 employment injury. The Office stated that appellant’s
entitlement to medical treatment was not affected by its decision.
On October 2, 2009 appellant requested a review of the written record by an Office
hearing representative.
In a September 23, 2009 report, Dr. Lynn R. Kohan, a Board-certified anesthesiologist,
listed findings on physical examination and reviewed diagnostic test results. She diagnosed right
sacroiliitis, spondylosis and mild lumbar spinal stenosis. In an October 6, 2009 report,
Dr. Kohan stated that appellant received a steroid injection to treat her right sacroiliitis condition.
In a September 24, 2009 report, Dr. Rank reiterated his opinion that appellant sustained
degenerative disc and joint disease due to her May 25, 2006 employment injury. He stated that
she could return to her regular work duties on September 30, 2009.2
In a January 26, 2010 decision, an Office hearing representative affirmed the Office’s
September 3, 2009 decision denying appellant’s claim for a recurrence of disability.3
LEGAL PRECEDENT
A recurrence of disability is the inability to work after an employee has returned to work,
caused by a spontaneous change in a medical condition, which had resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment, which
caused the illness. The term also means an inability to work that takes place when a light-duty
assignment made specifically to accommodate an employee’s physical limitations due to his or
her work-related injury or illness is withdrawn (except when such withdrawal occurs for reasons
of misconduct, nonperformance of job duties or a reduction-in-force) or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.4
2

Appellant accepted the employing establishment’s job offer for a modified mail processing position effective
September 30, 2009.
3

The hearing representative modified the prior decision to find.

4

20 C.F.R. § 10.5(x).

3

A person who claims a recurrence of disability has the burden of establishing by the
weight of the substantial, reliable and probative evidence that the disability, for which she claims
compensation is causally related to the accepted employment injury.5 Appellant has the burden
of establishing by the weight of the substantial, reliable and probative evidence a causal
relationship between her recurrence of disability and her employment injury.6 This burden
includes the necessity of furnishing evidence from a qualified physician who, on the basis of a
complete and accurate factual and medical history, concludes that the condition is causally
related to the employment injury.7 Moreover, the physician’s conclusion must be supported by
sound medical reasoning.8
The medical evidence must demonstrate that the claimed recurrence was caused,
precipitated, accelerated or aggravated by the accepted injury.9 In this regard, medical evidence
of bridging symptoms between the recurrence and the accepted injury must support the
physician’s conclusion of a causal relationship.10 While the opinion of a physician supporting
causal relationship need not be one of absolute medical certainty, the opinion must not be
speculative or equivocal. The opinion should be expressed in terms of a reasonable degree of
medical certainty.11
ANALYSIS
The Office accepted that appellant sustained a back sprain in the performance of duty on
May 25, 2006. Appellant claimed a recurrence of her back condition on May 25, 2009. The
Board finds that she failed to submit sufficient medical evidence to establish that her need for
medical treatment is due to her accepted condition.
Dr. Rank’s form reports of 2009 indicated with an affirmative mark that appellant had
lumbar pain and degenerative disc disease due to her May 25, 2006 employment injury. He
advised that she was totally disabled for work from May 22 through at least October 30, 2009.
Reports which only address causal relationship with a check mark without more by way of
medical rationale explaining how the incident caused the injury are insufficient to establish
causal relationship and are of diminished probative value.12 Dr. Rank did not explain how the
diagnosed conditions and total disability were caused or contributed to by the May 25, 2006
5

Kenneth R. Love, 50 ECAB 193, 199 (1998).

6

Carmen Gould, 50 ECAB 504 (1999); Lourdes Davila, 45 ECAB 139 (1993).

7

Ricky S. Storms, 52 ECAB 349 (2001); see also 20 C.F.R. § 10.104(a)-(b).

8

Alfredo Rodriguez, 47 ECAB 437 (1996); Louise G. Malloy, 45 ECAB 613 (1994).

9

See Ricky S. Storms, supra note 7; see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.2 (June 1995).
10

For the importance of bridging information in establishing a claim for a recurrence of disability, see Richard
McBride, 37 ECAB 748 at 753 (1986).
11

See Ricky S. Storms, supra note 7; Morris Scanlon, 11 ECAB 384, 385 (1960).

12

See Frederick H. Coward, Jr., 41 ECAB 843 (1990); Lillian M. Jones, 34 ECAB 379 (1982).

4

employment injury.13 The Board notes that pain is generally considered a symptom, not a firm
diagnosis.14 Dr. Rank’s June 2 and September 24, 2009 reports which found that appellant’s
back pain and degenerative disc and joint disease were caused by her accepted employment
injury and that she could return to light-duty work as of June 10 and September 30, 2009,
respectively, are similarly insufficient to establish her claim. As stated, pain is a symptom and
not a diagnosis.15 Moreover, Dr. Rank failed to address how the diagnosed lumbar conditions
and appellant’s disability were caused or contributed to by her accepted condition.16 His June 22
and July 14, 2009 reports found that she was totally disabled for work. Again, Dr. Rank did not
address how appellant’s disability was causally related to her May 25, 2006 employment injury.
Dr. Alford’s diagnostic test results and the reports of Dr. Shen, Dr. Barr and Dr. Kohan
which addressed appellant’s lumbar conditions and medical treatment do not provide any
medical opinion addressing whether the diagnosed conditions are causally related to the May 25,
2006 employment injury. The Board has held that medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue
of causal relationship.17 The Board finds, therefore, that the physicians’ reports are insufficient
to establish appellant’s claim.
The hospital records which stated that appellant was treated on June 2, 2009 for a
lumbosacral sprain are similarly insufficient to establish her claim. This evidence does not
provide any opinion explaining how her current back condition or need for medical treatment
related to the accepted employment injury. Appellant has failed to submit sufficient medical
evidence to establish a recurrence of her lumbar condition or need for treatment due to the
May 25, 2006 accepted injury.
CONCLUSION
The Board finds that appellant has failed to establish that she sustained a recurrence of
disability.

13

See Gloria J. McPherson, 51 ECAB 441 (2000) (the opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.
14

See Robert Broome, 55 ECAB 339 (2004).

15

Id.

16

Gloria J. McPherson, supra note 13.

17

A.F., 59 ECAB 714 (2008).

5

ORDER
IT IS HEREBY ORDERED THAT the January 26, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 12, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jacksonville, FL, Employer
__________________________________________

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

Docket No. 10-77
Issued: July 21, 2010

Case Submitted on the Record

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

JURISDICTION
On October 13, 2009 appellant, through counsel, filed a timely appeal from an August 14,
2009 merit decision of the Office of Workers’ Compensation Programs denying compensation
for wage loss. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this claim.
ISSUE
The issue is whether appellant met her burden of proof to establish that she was disabled
on October 11, 30 and December 3, 2008 and January 5 and 6, 2009 causally related to her
March 22, 2007 employment injury.
FACTUAL HISTORY
On March 22, 2007 appellant, then a 45-year-old rural carrier, sustained a concussion and
injuries to her neck, back, shoulders and arms when she was involved in an automobile accident.
The Office accepted the claim for concussion with no loss of consciousness, contusions of the

head, both shoulders and knees and a cervical strain. Appellant stopped work on March 23, 2007
and returned to modified duty on or about April 13, 2007.1
On November 3, 2008 appellant filed a claim for wage-loss compensation (Form CA-7)
for October 11 and 13, 2008. In an attached time analysis form she claimed 5.24 hours of leave
without pay for October 11, 2008, which she indicated that was approved under the Family and
Medical Leave Act according to her physician’s report.2
On November 14, 2008 appellant filed a claim for wage-loss compensation (Form CA-7)
for October 30, 2008. In an attached time analysis form she claimed 5.24 hours of leave without
pay for that day, which she indicated that was approved under the Family and Medical Leave
Act.
In letters dated November 12 and 19, 2008, the Office requested that appellant submit
medical evidence establishing her disability for October 11 and 30, 2008. In a November 24,
2008 report, Dr. Winston R. Ortiz, a treating Board-certified neurologist, indicated that on
October 11 and 30, 2008 she was totally disabled from work due to migraine headaches. He
stated that he instructed appellant not to drive or work when she experienced a severe headache
and that this condition was permanent.
On January 9, 2009 appellant filed claims for wage-loss compensation for December 3,
2008 and January 5 and 6, 2009. In an accompanying time analysis form, she claimed 12 hours
of leave without pay for these days.
In a January 8, 2009 report, Dr. Ortiz stated that appellant was disabled from work on
December 3, 2008 and January 5 and 6, 2009 as a result of migraine headaches. He reiterated
that her condition was permanent and she was not to drive or go to work while having a migraine
headache.
On February 11, 2009 the Office noted receipt of appellant’s claim for wage loss on
December 3, 2008 and January 5 and 6, 2009 and Dr. Ortiz’ January 8, 2009 report. It advised
her that the evidence was insufficient as the medical report did not provide any physical findings
or medical rationale addressing how her disability related to her accepted injury.
By decision dated February 11, 2009, the Office denied appellant’s claim for wage-loss
compensation for October 11 and 30, 2008. It found that the report of Dr. Ortiz was insufficient
to establish her claim as there was no evidence that he had examined her on those dates or
provided medical rationale explaining how her disability rated to her accepted injury.
In a letter dated February 18, 2009, appellant’s counsel disagreed with the February 11,
2009 decision and requested a telephonic hearing before an Office hearing representative.

1

Appellant was not a full-time employee at the time of injury. The agency advised that she worked 1635.55
hours in the year prior to injury.
2

Appellant also claimed 5.24 hours of holiday pay for October 13, 2008 which was not approved by the
employing establishment on the grounds that she was not entitled to holiday pay for that day.

2

In a February 24, 2009 note, Dr. Ortiz stated that he had instructed appellant not to drive
or go to work when she had a migraine headache. He opined that her headaches were posttraumatic and a direct result of her work injury. Dr. Ortiz noted that appellant would
occasionally have headaches and should be excused from work.
In a March 13, 2009 decision, the Office denied appellant’s claim for wage-loss
compensation for December 3, 2008 and January 5 and 6, 2009. It found that the opinion of
Dr. Ortiz was insufficient to establish her disability as he provided no supporting medical
rationale or evidence that he had examined her on the dates claimed.
In a letter dated March 20, 2009, appellant’s counsel requested a telephonic hearing
before an Office hearing representative. A hearing was held on June 1, 2009 from the
February 11 and March 13, 2009 decisions.
In a March 13, 2009 report, Dr. Ortiz noted that appellant sustained a head injury on
March 22, 2007 and stated that it was “common for patients with this sort of injury to experience
headaches to a varying degree for months and even years afterward.” He noted that he was
unable to provide objective findings but felt it medically necessary that she must remain at home
and take her medication when experiencing a severe headache. On March 17, 2009 Dr. Ortiz
reiterated the content of the March 13, 2009 report noted adding that appellant missed only five
days of work on October 11, 30 and December 3, 2008 and January 5 and 6, 2009 as a result of
her accepted injury.
By decision dated August 14, 2009, the Office hearing representative affirmed the
February 11 and March 13, 2009 decisions denying appellant’s claim for wage-loss
compensation. He found that the medical evidence from Dr. Ortiz was insufficient to establish
that she was disabled for the dates claimed.
LEGAL PRECEDENT
For each period of disability claimed, an employee has the burden of establishing that she
was disabled for work as a result of the accepted employment injury.3 Whether a particular
injury causes an employee to become disabled for work and the duration of that disability, are
medical issues that must be proved by a preponderance of probative and reliable medical opinion
evidence.4
Under the Federal Employees’ Compensation Act the term “disability” means incapacity,
because of an employment injury, to earn the wages that the employee was receiving at the time
of injury.5 Disability is, thus, not synonymous with physical impairment which may or may not
result in an incapacity to earn wages.6 An employee who has a physical impairment causally
3

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also David H. Goss, 32 ECAB 24 (1980).

4

See Edward H. Horton, 41 ECAB 301 (1989).

5

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); Conard Hightower, 54 ECAB 796
(2003); 20 C.F.R. § 10.5(f).
6

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

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related to her federal employment, but who nonetheless has the capacity to earn the wages she
was receiving at the time of injury, has no disability and is not entitled to compensation for loss
of wage-earning capacity.7 When, however, the medical evidence establishes that the residuals
or sequelae of an employment injury are such that, from a medical standpoint, they prevent the
employee from continuing in her employment, she is entitled to compensation for any loss of
wages.
To meet this burden, a claimant must submit rationalized medical opinion evidence based
on a complete factual and medical background supporting such a causal relationship.
Rationalized medical opinion evidence is medical evidence which includes a physician’s opinion
on the issue of whether there is a causal relationship between the claimant’s diagnosed condition
and the implicated employment factor(s).8 The opinion of the physician must be based on a
complete factual and medical background, must be one of reasonable medical certainty and must
be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.9
The Board will not require the Office to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.10
ANALYSIS
Appellant claimed disability on October 11, 30 and December 3, 2008 and January 5
and 6, 2009 due to the March 22, 2007 automobile accident. She must submit probative
evidence of disability causally related to the employment injury for these dates. The Office
accepted her claim for concussion with no loss of consciousness, contusions of the head, both
shoulders and knees and a cervical strain.
The Board finds that the brief notes from Dr. Ortiz are not sufficient to establish
appellant’s disability for the specific dates claimed due to the March 22, 2007 employment
injury. The medical notes of record addressed her disability first arising in October 2008 to the
motor vehicle accident some 18 months prior to the claimed disability. Dr. Ortiz related that
appellant became totally disabled due to migraine headaches and referenced the dates she was
disabled. In addressing causal relation, he stated only that it is common for individuals
sustaining head trauma in automobile accidents to experience disabling headaches. Dr. Ortiz
noted that this was the extent of the objective evidence he could provide. He did not provide a
full description of the injuries sustained by appellant, discuss the conditions accepted by the
Office, provide findings from physical examination or adequately explain how the motor vehicle

7

Merle J. Marceau, 53 ECAB 197 (2001).

8

A.D., 58 ECAB 149 (2006).

9

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

10

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

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accident contributed to her disability on the dates claimed.11 Dr. Ortiz’s reports do not contain
findings on examination or explanation as to how the disability on the dates claimed was related
to the employment injury beyond noting that when appellant experienced a migraine headache
she was totally disabled. The Board has held that a medical opinion not fortified by medical
rationale is of diminished probative value.12 The opinion of Dr. Ortiz is speculative on the issue
of causal relation.13
The Board finds that the medical evidence of record is not sufficient to meet appellant’s
burden of proof with respect to the claimed dates of disability. Accordingly, the Office properly
denied wage-loss compensation for these days.
CONCLUSION
The Board finds that appellant has not established that she was disabled on October 11,
30 and December 3, 2008 and January 5 and 6, 2009 causally related to her March 22, 2007
employment injury.

11

See Robert Broome, 55 ESAB 339 (2004).

12

T.M., 60 ECAB ___ (Docket No. 08-975, issued February 6, 2009); Richard A. Neidert, 57 ECAB 474 (2006)
(medical reports not containing rationale on causal relation are entitled to little probative value and are generally
insufficient to meet an employee’s burden of proof).
13

See Ellen L. Noble, 55 ECAB 530 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 14, 2009 is affirmed.
Issued: July 21, 2010
Washington, DC

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

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

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

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

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

Docket No. 07-1651
Issued: December 7, 2007

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 6, 2007 appellant filed a timely appeal from the April 10, 2007 decision of the
Office of Workers’ Compensation Programs denying modification of the Office hearing
representative’s November 15, 2006 decision, which affirmed appellant’s schedule award. On
July 21, 2006 the Office awarded him a seven percent impairment of his left lower extremity.
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 established that he has more than seven percent
impairment of his left lower extremity, for which he received a schedule award.
FACTUAL HISTORY
On May 6, 2005 appellant, then a 40-year-old letter carrier, filed an occupational disease
claim, Form CA-2, alleging that he developed tendinitis in his left foot and ankle as a result of
the standing and walking required by his federal employment. On May 24, 2005 Dr. Leonard

Talarico, a podiatrist, conducted a tarsal tunnel release and neurolysis of the peroneal branch of
the sciatic nerve and the medical and lateral plantar nerves in appellant’s left foot. On May 27,
2005 the Office accepted appellant’s claim for left tarsal tunnel syndrome.
On August 26, 2005 appellant filed a claim for a schedule award. In support of his claim,
he submitted the August 10, 2005 report of Dr. Douglas Hein, a Board-certified orthopedic
surgeon, who stated that appellant continued to have persistent pain in his left foot. Dr. Hein
reported that appellant underwent neurolysis of the posterior tibial and common perineal and
plantar nerves, but noted that he was unsure whether the plantar nerves had been fully released
because the surgical incision did not go very far. He stated that appellant’s current symptoms
were at the posterior tibial tendon, where he had magnetic resonance imaging scan
documentation of peritendinous fluid, but no tendon breakdown. Dr. Hein diagnosed mild
posterior tibial tendinitis and recommended left-foot arch support and limitations on standing.
On August 15, 2005 Dr. Talarico submitted an attending physician’s report diagnosing tarsal
tunnel syndrome and posterior tibial tendinitis in the lower left extremity. He limited appellant
to one to two hours of standing and walking per day.
Appellant retired from the employing establishment on November 19, 2005. On
March 28, 2006 the Office informed appellant of the evidentiary requirements for establishing a
schedule award.
On May 17, 2006 Dr. Hein submitted another report in support of appellant’s schedule
award claim. He stated that appellant developed tarsal tunnel syndrome as a result of protracted
standing and that he continued to experience dysesthesia and some numbness of the medial
plantar and great toe of the left foot. On examination Dr. Hein found healed incisions at the
medial aspect of the left foot and the left knee. He noted that appellant had a normal gait with
symmetrically decreased motion in his feet, which did not appear to be traumatically induced.
Dr. Hein stated that appellant had partial hypesthesia in the distribution of the medial plantar
nerve on the left foot. He found no significant weakness in the left foot. Dr. Hein opined that
appellant’s symptoms indicated a Grade 4 sensory deficit that rated 25 percent impairment,
leading to a whole person impairment of one percent. He stated that appellant’s dysesthesia
indicated a whole person impairment of two percent. Dr. Hein therefore rated appellant’s total
tarsal tunnel syndrome-related impairment as three percent of the whole person. He provided no
rating for motion deficits or weakness. Dr. Hein stated that appellant’s current left foot condition
was a permanent residual of his tarsal tunnel syndrome and release surgery.
On June 6, 2006 the Office provided Dr. Hein’s report to an Office medical adviser,
Dr. James Dyer, for a schedule award determination. Dr. Dyer stated that appellant had tarsal
tunnel syndrome with a surgical release of the left tarsal tunnel is May 2005. He found that
appellant had residuals of hypesthesia in the medial plantar nerve distribution of the left foot, but
no weakness. Based on the American Medical Association, Guides to the Evaluation of
Permanent Impairment (5th ed., 2001), Table 17-37, page 552, Dr. Dyer found an impairment of
five percent of the left lower extremity or seven percent of the left foot.
By decision dated July 21, 2006, the Office granted appellant a schedule award for the
seven percent impairment of his left foot in accordance with Dr. Dyer’s opinion.

2

On July 28, 2006 appellant requested a review of the written record. He stated that he
disagreed with Dr. Hein’s finding that he had no significant weakness or loss of motion.
Appellant stated that the April 18, 2006 report of Dr. Talarico best described his condition,
which included constant nagging pain and numbness in his left foot, the inability to stand for
long periods of time and the swelling of his foot when the weather is cloudy. On April 18, 2006
Dr. Talarico stated that appellant continued to complain of pain with prolonged standing after
November 19, 2005, the date of his maximum medical improvement. He found residuals of
decreased strength in the left foot and leg, which resulted in difficulty lifting objects.
Dr. Talarico noted sensation changes in appellant’s left foot and leg, including slight pain and
numbness. He found that appellant had decreased range of motion in the left foot secondary to
pain.
By decision dated November 15, 2006, the Office hearing representative affirmed the
July 21, 2006 schedule award. She noted that Dr. Hein’s impairment rating could not be used
because ratings for the whole person are not accepted under the Federal Employees’
Compensation Act. The Office hearing representative found that Dr. Dyer properly applied
Dr. Hein’s findings to the A.M.A., Guides to arrive at the correct impairment rating. She noted
that the medical records appellant submitted did not provide adequately detailed descriptions of
his impairment to allow for modification of the schedule award.
On February 2, 2007 appellant requested reconsideration of the Office hearing
representative’s decision. He stated that Dr. Hein had referred him to Dr. Robson Spinola, a
Board-certified podiatrist, for his ongoing foot and ankle pain. As evidence that, an increase in
his schedule award was warranted, appellant provided a report from Dr. Spinola and a functional
capacity evaluation conducted on January 9, 2007. On January 24, 2007 Dr. Spinola stated that
appellant’s condition had not improved since the time of his surgery. Appellant’s symptoms
included decreased strength in his mid-arch and tarsal tunnel area with standing, tingling and
burning over his deep peroneal nerve and tenderness at the attachments of the tibialis posterior
tendon. Dr. Spinola diagnosed chronic left foot pain, which incapacitated him from standing for
long periods of time. He stated that the functional capacity evaluation showed that the left foot
was the full etiological factor behind appellant’s foot pain.
By decision dated April 10, 2007, the Office denied modification of appellant’s schedule
award. The Office found that appellant presented no evidence that the impairment of his left foot
was greater than the seven percent previously awarded because neither Dr. Spinola’s report nor
the functional capacity evaluation addressed the permanent impairment of his left foot in terms
of the A.M.A., Guides.
LEGAL PRECEDENT
The schedule award provision of the Act1 and its implementing regulations2 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
1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404.

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specify the manner in which the percentage of loss should be determined. For consistent results
and to ensure equal justice under the law for all claimants, the Office has adopted the A.M.A.,
Guides as the uniform standards applicable to all claimants.3 Office procedures direct the use of
the fifth edition of the A.M.A., Guides, issued in 2001, for all decisions made after
February 1, 2001.4
The standards for evaluation of the permanent impairment of an extremity under the
A.M.A., Guides are based on loss of range of motion, together with all factors that prevent a limb
from functioning normally, such as pain, sensory deficit and loss of strength. All of the factors
should be considered together in evaluating the degree of permanent impairment.5
Where an examining physician has provided a description of physical findings but failed
to properly apply the A.M.A., Guides, a detailed opinion by the Office medical adviser giving an
impairment rating based on the reported findings and the A.M.A., Guides may constitute the
weight of the medical evidence.6 Office procedures state that when an Office medical adviser
explains his or her opinion, shows values and computation of impairment based on the A.M.A.,
Guides and considers each of the reported findings of impairment, his or her opinion may
constitute the weight of the medical opinion evidence.7
ANALYSIS
The Board finds that this case is not in posture for a decision because the opinion of the
Office medical adviser, Dr. Dyer, was insufficient to establish appellant’s permanent impairment
rating.
On June 6, 2006 Dr. Dyer reviewed appellant’s medical records and Dr. Hein’s
impairment rating. He stated that appellant had tarsal tunnel syndrome with a surgical release of
the left tarsal tunnel is May 2005. Dr. Dyer noted that appellant had residuals of hypesthesia in
the medial plantar nerve distribution of the left foot, but did not have weakness in that foot.
Based on Table 17-37, page 552, of the A.M.A., Guides, Dr. Dyer found an impairment of five
percent of the left lower extremity or seven percent of the left foot.
The Board finds that the impairment rating provided by Dr. Dyer does not constitute the
weight of the medical opinion evidence because he did not provide adequate rationale.8 The
3

20 C.F.R. § 10.404(a).

4

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

5

See Paul A. Toms, 28 ECAB 403 (1987).

6

James Massenburg, 29 ECAB 850 (1978).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.7(h) (April 1993).
8

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002) (“As a matter of course, the [Office medical adviser] should provide rationale for
the percentage of impairment specified.”)

4

A.M.A., Guides, section 17.21, page 550, addresses peripheral nerve injuries to the lower
extremities. It indicates that partial sensory and pain deficits should be rated as they are in the
upper extremity, using Table 16-10, page 482, to identify the percentage of sensory deficit in a
given nerve in conjunction with Table 17-37, page 552, which sets forth the maximum
impairments for each lower extremity nerve. Dr. Dyer’s report did not indicate the percentage of
sensory deficit he utilized or which of Dr. Hein’s examination findings formed the basis of that
percentage. Without such rationale explaining his medical opinion using examination findings,
the Board is unable to determine whether Dr. Dyer properly followed the A.M.A., Guides.
The Board also notes that Dr. Dyer did not address appellant’s diagnosed dysesthesia in
his impairment rating. Office procedure manual indicates that the opinion of the Office medical
adviser can constitute the weight of the medical opinion evidence only if it is rationalized and
considers each reported finding of impairment.9 On examination, Dr. Hein found dysesthesia in
appellant’s medial plantar nerve and big toe, which he rated as a whole person impairment of
two percent.10 In his opinion, Dr. Dyer did not indicate that appellant had been diagnosed with
dysesthesia or explain whether it was a proper basis for an impairment rating under the A.M.A.,
Guides. Because he provided no rationale for his exclusion of this finding of impairment, the
Board finds that his opinion cannot constitute the weight of the medical opinion evidence.
The Board therefore finds that the impairment rating provided by Dr. Dyer is an
insufficient basis for the Office’s schedule award.
CONCLUSION
The Board finds that this case is not in posture for a decision because the opinion of the
Office medical adviser was insufficient to establish appellant’s permanent impairment rating.
The case is remanded for further development of the medical evidence as necessary, followed by
an appropriate decision.

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.7(h) (April 1993).
10

Though whole person impairments are not allowed under the Act, Table 17-37, page 552, of the A.M.A.,
Guides indicates that this rating is equivalent to a rating of five percent impairment of the lower extremity or seven
percent of the foot.

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 10, 2007 and November 15 and July 21, 2006 are set aside
and remanded for action consistent with this opinion.
Issued: December 7, 2007
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Albuquerque, NM, Employer
__________________________________________
Appearances:
Gordon Reiselt, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 10-1112
Issued: May 25, 2011

Case Submitted on the Record

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

On March 15, 2010 appellant, through her representative, filed an application for review
of an Office of Workers’ Compensation Programs’ decision dated January 8, 2010. The appeal
was docketed as No. 10-1112.
This is the second appeal before the Board. Appellant filed a Form CA-2 claim for
benefits based on an occupational condition under case file number xxxxxx560 on September 11,
2007, seeking compensation for a lower back condition causally related to factors of her
employment. She stated on the form that she had filed a claim for a back injury under case file
number xxxxxx085. On November 6, 2007 appellant filed a Form CA-2a claim for a recurrence
of disability. In a November 6, 2007 statement, she indicated that she wanted to cancel the Form
CA-2 claim and replace it with the Form CA-2a recurrence claim, which she indicated pertained
to case file number xxxxxx085. In an October 6, 2007 statement, received by the Office on
November 13, 2007, appellant stated that she had experienced back problems ever since her
November 1, 1991 car accident -- these problems had recently worsened.
By decision dated November 26, 2007, OWCP denied the claim, finding that appellant
failed to submit medical evidence sufficient to establish that she sustained a lower back injury in
the performance of duty. It noted that appellant had submitted a Form CA-2a, but did not
discuss or consider her request to have her claim adjudicated as one for recurrence of disability.

By decisions dated September 9 and December 16, 2008, OWCP denied modification of the
November 26, 2007 decision. It noted that it had reviewed medical evidence from Dr. Roland K.
Sanchez, a Board-certified family practitioner and the attending physician, and Dr. Barry R.
Maron, a Board-certified orthopedic surgeon, which indicated that appellant was involved in a
motor vehicle accident on November 1, 1991 in which she sustained fractures to her back and
spine. Dr. Sanchez stated in his October 17, 2007 report, which was included in case number
xxxxxx085, that appellant had aggravated her back on August 17, 2007 when she lifted a tub of
mail at work and was off work for two months. He also stated that appellant had work
restrictions and had been receiving compensation for partial leave without pay for four hours per
day. Dr. Maron stated in his June 7, 2008 report that appellant had sustained no new injury in
2007 and that appellant’s job duties on August 22, 2007 had aggravated a chronic right shoulder
pain syndrome/rotator cuff tendinitis condition.
In an order dated September 14, 2009,1 the Board set aside the December 16, 2008
decision. The Board stated that contemporaneous factual and medical evidence pertaining to
appellant’s previously accepted 1991 claim, which the Office had referenced in its September 9
and December 16, 2008 decisions, was not contained in the instant record. The Board further
stated that the Office did not explain why it chose to adjudicate appellant’s claim as a new injury
or condition and denied appellant’s request to adjudicate her claim as one for a recurrence of
disability, despite the fact that appellant and several of the physicians of record indicated that her
current back symptoms were caused or aggravated by the accepted 1991 work injury. The Board
therefore remanded the case for the Office to consolidate claim numbers xxxxxx560 and
xxxxxx085, compose a statement of accepted facts and determine whether appellant sustained a
new injury or condition in the performance of duty, or whether appellant sustained a recurrence
of her November 1991 injury.
On remand the Office consolidated claim numbers xxxxxx560 and xxxxxx085 and
composed a statement of accepted facts. By decision dated January 8, 2010, it affirmed the
December 16, 2008 decision. The Office reiterated its previous determination that appellant had
presented a claim for a new injury, not one for a recurrence of disability. It therefore denied her
request to cancel her CA-2 claim and replace it with the CA-2a claim.
Section 20 C.F.R. § 10.126 requires the Office to issue a decision containing findings of
fact and a statement of reasons.2 The Board finds that the Office erred in its January 8, 2010
decision by failing to sufficiently discuss or analyze whether the reports from Dr. Sanchez and
other physicians showed that appellant’s claimed August 2007 back condition was caused or
aggravated by her accepted November 1991 back injury. The preponderance of the facts and
circumstances presented from August to November 2007 suggests that appellant attributed her
August 2007 back condition and work stoppage to her accepted 1991 back injury. The record
reflects that she initially filed a Form CA-2 claim for an alleged August 17, 2007 back injury on
September 11, 2007; however, she subsequently requested on several occasions that her case be
adjudicated as one for a recurrence of her November 1991 back condition. The Board notes that
on August 17, 2007 appellant was working light duty for four hours per day based on restrictions
1

Docket No. 09-680 (issued September 14, 2009).

2

20 C.F.R. § 10.126.

2

stemming from her November 1991 back injury. In her October 6, 2007 statement, appellant
stated that she had experienced back problems ever since her November 1, 1991 car accident
which had recently worsened. The Board therefore finds that the Office failed to give proper
consideration to the factual and medical evidence pertaining to whether appellant sustained a
recurrence of her accepted back condition on August 17, 2007.3 The case should be remanded to
the Office for consideration of this issue.
Accordingly, the case will be set aside and remanded for consideration of the medical
evidence pursuant to the standards set out in section 8128(a) and section 20 C.F.R. § 10.126.
The Office is directed to review this evidence for the purpose of determining whether appellant
sustained a recurrence of her 1991 accepted back condition as of August 17, 2007. After such
further development as the Office deems necessary, it should issue an appropriate decision to
protect appellant’s appeal rights.
IT IS HEREBY ORDERED THAT this case be set aside and remanded for
consideration of appellant’s claim for a recurrence of her accepted 1991 back condition as of
August 17, 2007.
Issued: May 25, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3

In addition, appellant’s attorney submitted a letter dated December 12, 2009 which specifically requested that
the claim be adjudicated as one for recurrence of disability.

3