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

)
)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1924
Issued: January 25, 2019

Case Submitted on the Record

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

JURISDICTION
On September 12, 2017 appellant, through counsel, filed a timely appeal from a May 15,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish more than five
percent permanent impairment of the left upper extremity, for which he previously received
schedule award compensation.
FACTUAL HISTORY
On June 4, 2013 appellant, then a 50-year-old mail processing clerk, filed a traumatic injury
claim (Form CA-1), alleging that he injured his left arm while putting an express mailbag into a
hamper while in the performance of duty. OWCP accepted the claim for left rotator cuff sprain,
adhesive capsulitis of the left shoulder, and a left shoulder labral tear. It subsequently expanded
acceptance of the claim to include sprain of the shoulder and upper arm, rotator cuff on the left,
and superior glenoid labrum lesion on the left. By letter dated September 8, 2014, counsel
provided a June 24, 2014 report from Dr. Nicholas Diamond, an attending Board-certified physical
medicine and rehabilitation physician, in support of appellant’s claim for a schedule award.
In the June 24, 2014 report, Dr. Diamond noted the history of injury, provided physical
examination findings, and made disability findings for four diagnosed conditions. His physical
examination findings noted measurement of range of motion (ROM) times three for the left
shoulder which revealed: forward elevation of 130/180 degrees with pain; abduction of 95/180
degrees with pain; cross over adduction of 60/75 degrees with pain; internal and external rotation
of 60/90 degrees, and external rotation of 90/90 degrees. Dr. Diamond found the posterior reach
was to the left greater trochanter with pain. He conducted manual muscle strength testing of the
upper extremities which revealed the supraspinatus and deltoids were graded at 4/5 on the left side.
Dr. Diamond also found a grade of 4/5 for the biceps and triceps on the left side. He noted that
his sensory examination failed to reveal any perceived dermatomal abnormalities in either the right
or left upper extremity. Dr. Diamond also explained that appellant had subjective findings of left
shoulder pain and stiffness which was daily and constant, and noted that changes in weather
exacerbated his left shoulder pain. He noted that appellant underwent restrictions in his activities
of daily living.
Dr. Diamond referred to Table 15-34, Table 15-35, and Table 15-7 in his impairment rating
calculations.3 He determined that the ROM deficit for the left shoulder included: flexion of 130
degrees, which corresponded to three percent impairment rating; adduction of 95 degrees, which
corresponded to three percent impairment rating; and internal rotation of 60 degrees, which
corresponded to two percent impairment rating. Dr. Diamond noted that the total was eight percent
impairment. He explained that the grade modifier for functional history and QuickDASH
(disabilities of the arm, shoulder, and hand) was 54 percent or 2, and noted that the impairment
increased by 5 percent and the final left upper extremity was 8 percent. Dr. Diamond found that
maximum medical improvement (MMI) was reached on June 24, 2014.
In an October 3, 2014 report, Dr. Morley Slutsky, Board-certified in occupational medicine
serving as an OWCP district medical adviser (DMA), reviewed the June 24, 2014 report from
3

A.M.A., Guides 475, 477, and 406.

2

Dr. Diamond. Dr. Slutsky found only four percent left upper extremity impairment under the
A.M.A., Guides. He disagreed with Dr. Diamond’s left shoulder impairment using the ROM
method. Dr. Slutsky explained that some of the ROM measurements were inconsistent with other
providers’ measurements at or near the date of MMI. Dr. Diamond indicated that he had used the
best ROM measurements to reflect appellant’s maximum effort, and instead relied on the
“preferred” diagnosis-based impairment (DBI) methodology. He opined that the four percent left
upper extremity impairment rating was based on residuals of a diagnosed labral tear under Table
15-34, Shoulder Range of Motion, A.M.A., Guides 475. Dr. Diamond found that appellant
reached MMI on June 24, 2014, the date of Dr. Diamond’s impairment examination.
On October 30, 2014 appellant filed a schedule award claim (Form CA-7).
By decision dated November 18, 2014, OWCP granted appellant a schedule award for four
percent permanent impairment of the left upper extremity. The award covered a period of 12.48
weeks, for the period June 24 through September 19, 2014. OWCP based the award on the DMA’s
four percent impairment rating, noting that the DMA determined that appellant’s attending
physician had “incorrectly applied the [Guides]….”
On November 24, 2014 counsel requested a hearing, which was held before an OWCP
hearing representative on March 26, 2015.
By decision dated May 8, 2015, OWCP’s hearing representative vacated the November 18,
2014 decision and remanded the case for further medical development and consideration of
additional conditions. She also instructed OWCP to refer appellant for an impartial examination
to resolve the conflict identified between the attending physician, Dr. Diamond, and Dr. Slutsky,
regarding appellant’s left upper extremity permanent partial impairment.
OWCP developed the claim and on May 14, 2015 accepted the additional condition of left
superior glenoid labrum lesion (labral tear). By letter dated May 27, 2015, it referred appellant for
an impartial medical evaluation with Dr. Noubar A. Didizian, a Board-certified orthopedic
surgeon.
In a July 21, 2015 report, Dr. Didizian noted appellant’s history of injury and treatment
and provided findings on physical examination. He utilized the DBI method under the A.M.A.,
Guides to calculate appellant’s permanent impairment. Dr. Didizian explained that the DBI
method was the preferred method because the ROM method had a bias. He explained that the
patient could use different active ranges even though three attempts were made in the ROM testing.
Dr. Didizian noted that the DBI method and use of the adjustment grids and grid modifiers took
away the bias factor. He noted the accepted diagnosis and explained that the most tangible injury
was the labral tear, and selected it as the prime diagnosis for the final calculations. Dr. Didizian
referred to the Shoulder Regional Grid -- Upper extremity impairment -- Table 15-5,4 under labral
lesions. He referenced the appropriate tables and found a four percent impairment of the left upper
extremity.

4

A.M.A., Guides 404.

3

On July 21, 2015 Dr. Didizian’s report was sent by OWCP for review to Dr. Arnold
Berman, a Board-certified orthopedic surgeon and DMA.
In a September 9, 2015 report, Dr. Berman opined that appellant was entitled to a schedule
award for five percent permanent impairment of the left upper extremity.
By decision dated September 9, 2015, OWCP granted appellant an additional award of one
percent permanent of the left upper extremity. The award covered a period of 3.12 weeks, for the
period July 21 to August 11, 2015.
On September 16, 2015 appellant, through counsel, requested reconsideration.
In a February 15, 2016 report, Dr. Diamond noted that he had reviewed the medical
evidence to include the report of Dr. Didizian dated July 21, 2015 as well as the DMA
memorandum dated June 4, 2013. He explained that the ROM findings of the left shoulder were
very similar to the ROM findings that he had obtained on June 24, 2014. Dr. Diamond disagreed
with Dr. Didizian that the DBI method using the diagnoses of labral tear was appropriate. He
explained that appellant had also been diagnosed with adhesive capsulitis, which was a more
debilitating diagnosis for him and he explained that due to the fact that they both obtained very
similar ROMs to the left shoulder that would indicate reproducibility of physical examination
findings and therefore, yield a higher accuracy. Dr. Diamond advised that he stood by his
impairment rating of June 24, 2014 and opined that appellant had a final left upper extremity
impairment of eight percent.
On March 30, 2016 OWCP’s hearing representative set aside the September 9, 2015
decision and remanded the case for further medical development. She found that Dr. Diamond
calculated eight percent permanent impairment of the left upper extremity based upon the ROM
method, whereas the DMA, opined that the DBI method should be used for labral tear and instead
calculated four percent left upper extremity impairment. In a July 7, 2016 report, Dr. Didizian
explained that he calculated the permanent impairment for appellant and determined that appellant
had four percent impairment. He noted that he had reviewed the February 15, 2016 report of
Dr. Diamond and noted that he was contradicting his report on the basis that the ROM method was
better than a DBI rating. Dr. Didizian also noted that Dr. Diamond indicated that adhesive
capsulitis was the more debilitating diagnosis, rather than the labral tear. He opined that the
“premise is wrong because adhesive capsulitis will resolve by itself without any particular
treatment. Whereas, a labral tear is not going to resolve on its own and that is why surgery was
done. At the time of the surgery both issues were addressed.” Dr. Didizian noted that he had
reviewed the report of Dr. Berman dated September 13, 2015 and he did not have any particular
issues with that report. He reiterated that he stood by his own opinion and that “Dr. Diamond’s
opinion was wrong.”
By decision dated July 19, 2016, OWCP denied an increased schedule award. It found that
the medical evidence did not support an increased award.
On July 27, 2016 appellant, through counsel, requested an oral hearing.
In an August 15, 2016 decision, a hearing representative found that the case was not in
posture for a hearing. She instructed OWCP to obtain a new impartial medical examiner (IME)
4

opinion on the issue of whether a DBI rating or ROM rating under the A.M.A., Guides should be
utilized for purposes of rating appellant’s left upper extremity. OWCP found that the prior referee
had failed to provide an adequate clarification as requested and thus a new referee opinion was
necessary to resolve the conflict
On August 16, 2016 OWCP referred appellant for an impartial medical examination in
accordance with the instructions of OWCP’s hearing representative to resolve the conflict as to the
proper functional impairment rating under the A.M.A., Guides.
On August 16, 2016 OWCP referred appellant, together with a statement of accepted facts
(SOAF), the medical record, and a list of questions, to Dr. Stanley Askin, a Board-certified
orthopedic surgeon, for an impartial medical examination to determine appellant’s left upper
extremity permanent impairment. In a September 29, 2016 report, Dr. Askin noted appellant’s
history of injury and treatment and examined appellant. He noted that right shoulder ROM was
offered to 180 degrees of forward flexion and abduction and 45 degrees each of internal and
external rotation. Dr. Askin found that left shoulder motion was offered to 100 degrees of forward
flexion and abduction (under his control), again in response to his request that he show only what
he could do without hurting himself. He related that appellant was able to perform 20 degrees of
internal rotation and 10 degrees of external rotation of the left shoulder. Dr. Askin responded to
questions regarding impairment. He noted that appellant’s ROM appeared to have been a moving
target in that what he presently offered was less than was recorded earlier. Dr. Askin opined that
there could be more than one explanation regarding such, such as whether appellant was being
fully cooperative with respect to the examination or whether the accepted diagnoses were not an
accurate representation of what has troubled him. He also explained that he was not in any manner
disputing the SOAF, but merely offering a fully rationalized understanding of appellant’s status.
Dr. Askin further noted that “[r]especting the fact that there has been variance regarding
[appellant’s] [ROM] over time (for example, Dr. Smith reported on [February 21, 2014] that the
[ROM] was 130 degrees of active flexion and abduction and internal and external rotation of 60
degrees each), the DBI rating pursuant to Table 15-5 on page 404 of the sixth edition best conforms
to that which had been accepted according to the [SOAF].” He summarily concluded that he was
in agreement with the impairment rating conducted by Dr. Berman, which had modified the rating
of Dr. Slutsky, was most consistent with the SOAF. By decision dated October 12, 2016, OWCP
found that Dr. Askin had resolved the conflict of medical opinion and his opinion was therefore
entitled to the special weight of the medical evidence. It noted that as appellant was previously
paid a schedule award for five percent, the evidence of record did not support an increased schedule
award. On October 18, 2016 appellant, through counsel, requested an oral hearing, which was
held before an OWCP hearing representative on February 28, 2017.
By decision dated May 15, 2017, OWCP’s hearing representative affirmed the prior
schedule award decision.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has

5

vested the authority to implement the FECA program with the Director of OWCP.5 Section 8107
of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of use
of specified members, functions, and organs of the body.6 FECA, however, does not specify the
manner by which the percentage loss of a member, function, or organ shall be determined. To
ensure consistent results and equal justice under the law, good administrative practice requires the
use of uniform standards applicable to all claimants. Through its implementing regulations,
OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating schedule losses.7
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first printing
of the A.M.A., Guides. In April 2009, these changes were formally incorporated into the second
printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).8 The Board has approved the use by OWCP of the A.M.A., Guides
for the purpose of determining the percentage loss of use of a member of the body for schedule
award purposes.9
The sixth edition requires identifying the impairment for the class of diagnosis (CDX)
condition, which is then adjusted by grade modifiers based on functional history (GMFH), physical
examination (GMPE), and clinical studies (GMCS).10 The net adjustment formula is (GMFHCDX) + (GMPE-CDX) + (GMCS-CDX).11
Regarding the application of ROM or DBI impairment methodologies in rating permanent
impairment of the upper extremities, FECA Bulletin No. 17-06 provides:
“As the [A.M.A.,] Guides caution that, if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).”
5

See 20 C.F.R. §§ 1.1-1.4.

6

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C. § 8107(c)(1).

7

20 C.F.R. § 10.404; see also Ronald R. Kraynak, 53 ECAB 130 (2001).

8
Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010);
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5a (February 2013).
9

Isidoro Rivera, 12 ECAB 348 (1961).

10

A.M.A., Guides 494-531.

11

Id. at 521.

6

“Upon initial review of a referral for upper extremity evaluation, the DMA should
identify (1) the methodology used by the rating physician (i.e., the DBI or ROM)
and (2) whether the applicable tabled in Chapter 15 of the [A.M.A.,] Guides
identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.”12
The Bulletin further advises:
“If the rating physician provided an assessment using the ROM method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.”13
ANALYSIS
The Board finds that this case is not in posture for decision.
On August 16, 2016 OWCP referred appellant for an impartial medical examination in
accordance with the instructions of OWCP’s hearing representative to resolve the conflict between
Dr. Diamond and the Dr. Berman, a DMA, regarding whether the ROM or DBI method was the
more appropriate method to rate the extent of permanent impairment utilizing the A.M.A., Guides.
The IME was tasked with utilizing a consistent method for calculating permanent impairment for
the upper extremities to be applied uniformly, as described in FECA Bulletin No. 17-06.14
In his referee report dated September 29, 2016, Dr. Askin did not provide a responsive
medical report. OWCP had instructed him to perform a physical examination, review the medical
records and the SOAF, and provide an independent rating of appellant’s left upper extremity
pursuant to the A.M.A., Guides. The Board finds that he failed to fulfill his responsibilities as a
referee physician as he merely acknowledged his agreement with the impairment opinion
expressed by Dr. Berman, a DMA. Dr. Askin’s report failed to cite table or charts in the A.M.A.,
Guides as he did not perform his own calculations. It is well established that when a physician’s
report provides an estimate of impairment, but does not address how the rating was made under
the A.M.A., Guides, it lacks probative value.15
The Board has held that, when OWCP obtains an opinion from an IME for the purpose of
resolving a conflict in the medical evidence and the specialist’s opinion requires clarification or
elaboration, OWCP must secure a supplemental report from the specialist to correct the defect in
12

FECA Bulletin No. 17-06 (May 8, 2017).

13

Id.

14

Id.

15
See Paul R. Evans, Jr., 44 ECAB 646 (1993); John Constantin, 39 ECAB 1090 (1988) (a medical report not
explaining how the A.M.A., Guides are utilized is of little probative value).

7

his original report.16 If the impartial specialist is unable to clarify or elaborate on the original
report or if the supplemental report is also vague, speculative, or lacking in rationale, OWCP must
submit the case record and a detailed SOAF to another impartial specialist for the purpose of
obtaining his rationalized medical opinion on the issue.17 As OWCP did not follow its own
procedures, the case shall be remanded for that purpose. After such other development as may be
deemed necessary, OWCP shall issue a de novo decision on appellant’s claim for an increased
upper extremity schedule award.18
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the May 15, 2017 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded for further action consistent with
this decision.
Issued: January 25, 2019
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
16
Talmadge Miller, 47 ECAB 673 (1996); Harold Travis, 30 ECAB 1071, 1078 (1979); see also Federal (FECA)
Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 2.810(11)(c)(1)-(2)
(September 2010).
17

Id.

18

See supra note 12.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.L., Appellant
and
U.S. POSTAL SERVICE, VIENNA POST
OFFICE, Vienna, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Stephen D. Scavuzzo, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1723
Issued: January 6, 2009

Case Submitted on the Record

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

JURISDICTION
On June 3, 2008 appellant, through counsel, filed a timely appeal from a merit decision of
the Office of Workers’ Compensation Programs dated March 6, 2008 denying his claim for
wage-loss compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has
jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant has established that he was disabled for the period
January 5 to April 7, 2007 causally related to his accepted employment injury. On appeal his
counsel contends the denial was erroneous as the evidence established that appellant sustained a
new foot injury on January 5, 2007 due to his working outside his restrictions.
FACTUAL HISTORY
On July 13, 2006 appellant, then a 51-year-old part-time flexible carrier, filed an
occupational disease claim alleging that on November 17, 2005 he first realized that his bilateral

foot condition was employment related. The Office accepted his claim for aggravation of gout in
the right foot on August 29, 2006.
On April 10, 11 and 16, 2007 appellant filed claims for wage-loss compensation for the
period January 5 to April 7, 2007. He also provided time-analysis sheets for the period January 5
to April 7, 2007. The reason given by appellant for using leave without pay for this period was
“foot injury.”
Appellant submitted verification of treatment forms from Allan Korff, a nurse
practitioner, dated January 16, 2007; Dr. Ethiopia Abebe, a treating Board-certified internist,
dated April 4, 2007; Brigid Wiredu, a nurse practitioner, dated January 10, 2007; and Dr. Hien T.
Nguyen, a treating Board-certified internist, dated January 5, 2007. These notes indicated
repeated periods of illness and returns to light-duty work during this time. Appellant also
submitted an unsigned verification of treatment form dated February 22, 2007 which stated that
appellant had been unable to work due to illness for the period February 21 to 25, 2007 and that
he sought medical treatment on February 22, 2007. In a verification of treatment form dated
January 5, 2007, Dr. Nguyen indicated that appellant received medical treatment and was totally
disabled for the period January 5 to 7, 2007. In a January 10, 2007 verification of treatment
form, Ms. Wiredu indicated that appellant received medical treatment, was totally disabled for
the period January 9 to 16, 2007 and may resume work on January 17, 2007. In a January 16,
2007 verification of treatment form, Mr. Korff indicated that appellant was totally disabled for
the period January 9 to 28, 2007 and may resume work with restrictions on walking on
January 29, 2007. In an April 4, 2007 verification of treatment form, Dr. Abebe indicated that
appellant received medical treatment and was totally disabled for the period March 31 to April 6,
2007 and may resume work on April 8, 2007.
Appellant also submitted after visit summary reports dated April 4 and 5, 2007 and duty
status reports (Form CA-17) dated February 22 and April 2, 2007 from Dr. Abebe, an after visit
summary report from Mr. Korff dated January 16, 2007 and an after visit summary report from
Ms. Wiredu dated January 10, 2007 and Dr. Nguyen dated January 5, 2007. Dr. Nguyen, in a
January 5, 2007 after visit summary report, diagnosed toe pain and instructed appellant to stay
off his feet. In a January 10, 2007 after visit summary report, Ms. Wiredu diagnosed
hypertension and foot pain and advised rest. Mr. Korff, in a January 16, 2007 after visit
summary report, diagnosed arthritis of the foot or ankle and recommended putting ice on
appellant’s right big toe. In an April 4, 2007 after visit summary, Dr. Abebe diagnosed toe pain
and gouty arthropathy. He recommended elevating the leg and avoiding prolonged walking
which would aggravate the condition. Dr. Abebe, in another visit summary, diagnosed toe pain
and elevated blood pressure and recommended avoiding strenuous activity involving the right
big toe. In the duty status reports dated February 22 and April 2, 2007, he diagnosed right big
toe pain and indicated that appellant was able to work full time with restrictions.
By letter dated April 25, 2007, the Office informed appellant that the medical evidence
received was insufficient to support his claim. Appellant was advised as to the type of medical
evidence required to support his claim.
By decision dated May 25, 2007, the Office denied appellant’s claim for wage-loss
compensation for the period January 5 to April 7, 2007.

2

Subsequent to the denial of his claim, appellant submitted an April 6, 2007 employing
establishment form report by Dr. Abebe and medical evidence pertaining to treatment and
disability for periods following April 7, 2007. Dr. Abebe, in the April 6, 2007 report, diagnosed
right big toe pain and that he was unable to determine appellant’s recovery date.
In a letter dated June 8, 2007, appellant’s counsel requested an oral hearing before an
Office hearing representative, which was held on September 18, 2007.
By decision dated October 15, 2007, the Office hearing representative affirmed the denial
of appellant’s claim for wage-loss compensation for the period January 5 to April 7, 2007.
Following the hearing representative’s decision, the Office received letters dated
October 22, 2007 from appellant’s attorney and medical evidence previously submitted and not
pertaining to the period of disability in question. In the October 22, 2007 letter, appellant’s
attorney contended that the denial of appellant’s claim was erroneous as appellant sustained a
new foot injury on January 5, 2007 and that the employing establishment violated appellant’s
light-duty work restrictions.
In a letter dated December 14, 2007, appellant’s attorney requested reconsideration. He
contended that the medical evidence submitted with his October 22, 2007 letter established that
appellant was working outside his restrictions.
In its March 6, 2008 decision, the Office denied modification of the October 15, 2007
hearing representative’s decision.
LEGAL PRECEDENT
Under the Federal Employees’ Compensation Act, the term disability is defined as an
inability, due to an employment injury, to earn the wages the employee was receiving at the time
of the injury, i.e., an impairment resulting in loss of wage-earning capacity.1 For each period of
disability claimed, the employee has the burden of establishing that he or she was disabled for
work as a result of the accepted employment injury.2 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.3 The
fact that a condition manifests itself during a period of employment does not raise an inference
that there is a causal relationship between the two.4
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

1

See S.F., 59 ECAB ___ (Docket No. 08-426, issued July 16, 2008); Prince E. Wallace, 52 ECAB 357 (2001).

2

Sandra D. Pruitt, 57 ECAB 126 (2005); Dennis J. Balogh, 52 ECAB 232 (2001).

3

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Gary J. Watling, 52 ECAB 278 (2001).

4

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Manuel Garcia, 37 ECAB 767 (1986).

3

claimed. To do so would essentially allow an employee to self-certify his disability and
entitlement to compensation.5
ANALYSIS
Appellant’s claim was accepted for aggravation of gout in the right foot causally related
to factors of his federal employment. He must establish that the aggravation of the gout in his
right foot caused him to be disabled from work for the period January 5 to April 7, 2007.6
Initially, the Board notes that appellant’s argument that he established his claim based on
his sustaining a new injury on January 5, 2007 due to his working outside is restrictions is not
relevant to the issue at hand, i.e., whether appellant established that his disability was due to his
accepted employment injury of aggravation of his right foot gout. If appellant is claiming a foot
condition due to allegedly working outside his restrictions, this would be a claim for a new
injury.
In support of his claim for disability for the period January 5 to April 7, 2007 resulting
from the accepted employment aggravation of his right foot gout, appellant provided several
verification of treatment forms dating January 10 and 16, 2007 and after visit summary reports
from nurse practitioners. However, these reports do not constitute medical evidence and are
insufficient to establish his disability for work as they were not authored by physicians. Section
8101(2) of the Act provides that the term physician includes surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope
of their practice as defined by the applicable state law.7 Only medical evidence from a physician
as defined by the Act will be accorded probative value. Health care providers such as nurses,8
acupuncturists, physician’s assistants and physical therapists are not physicians under the Act.
Thus, their opinions carry no weight or probative value.9
The record also contains verification of treatment forms by Drs. Abebe and Nyugen. The
Board finds that this medical evidence is insufficient to support his claim for disability for the
period January 5 to April 7, 2007. The verification of treatment forms indicated repeated periods
of illness and returns to light-duty work during this time period. The Board finds that these
reports are insufficient to establish appellant’s claim for disability for the period January 5 to
April 7, 2007. None of these form reports contain any physical findings although they noted
appellant received medical treatment for this toe or foot condition. Neither Dr. Abebe nor
Dr. Nyugen provided any specific opinion on causal relationship between the claimed period of
disability and the accepted employment condition of aggravation of his right foot gout. Medical
evidence which does not offer any opinion regarding the cause of an employee’s condition is of
5

Amelia S. Jefferson, 57 ECAB 183 (2005); Fereidoon Kharabi, 52 ECAB 291 (2001).

6

Id.

7

5 U.S.C. § 8101(2)

8

G.G., 58 ECAB ___ (Docket No. 06-1564, issued February 27, 2007).

9

Id.

4

limited probative value on the issue of causal relationship.10 Thus, these form reports by
Drs. Abebe and Nyugen are insufficient to establish that appellant was totally disabled for the
period January 5 to April 7, 2007 due to his accepted employment injury.
Similarly, the after visit summary reports by Drs. Abebe and Dr. Nguyen are insufficient
to support appellant’s burden. Dr. Nguyen, in a January 5, 2007 after visit summary report,
diagnosed toe pain and instructed appellant to stay off his feet. In an April 4, 2007 after visit
summary, Dr. Abebe diagnosed toe pain and gouty arthropathy. He recommended elevating the
leg an avoiding prolonged walking which would aggravate the condition. Dr. Abebe, in the
April 5, 2007 visit summary, diagnosed toe pain and elevated blood pressure and recommended
avoiding strenuous activity involving the right big toe. In the duty status reports dated
February 22 and April 2, 2007, he diagnosed right big toe pain and indicated that appellant was
able to work full time with restrictions. Neither Dr. Abebe nor Dr. Nguyen provided an opinion
as to the cause of appellant’s condition in these reports. In addition, the physicians in these
reports failed to provide any specific opinion on causal relationship between the claimed period
of disability and the accepted employment condition of aggravation of his right foot gout.
Medical evidence which does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship.11 Thus, these reports
by Drs. Abebe and Nyugen are insufficient to establish that appellant was totally disabled for the
period January 5 to April 7, 2007 due to his accepted employment injury.
The record also contains an April 6, 2007 report and duty status reports dated
February 22 and April 2, 2007 by Dr. Abebe, who, in the April 6, 2007 report, diagnosed right
big toe pain. Dr. Abebe did not mention any dates of disability or appellant’s accepted
employment injury. In the duty status reports, he diagnosed right big toe pain and indicated that
appellant was able to work full time with restrictions. As noted above, 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.12 Since Dr. Abebe provided no opinion about the cause
of appellant’s condition or addressed the issue of appellant’s disability for the period January 5
to April 7, 2007, these reports are insufficient to meet appellant’s burden of proof.
The unsigned February 22, 2007 verification of treatment report which found that
appellant aggravated her right knee osteoarthritis and unsigned reports stating that appellant was
disabled for the period February 21 to 25, 2007 due to illness are not relevant as the origins of
these unsigned reports are not documented.13 As such, the Board finds that these unsigned
reports do not constitute a basis for establishing that appellant’s disability for the period
January 5 to April 7, 2007 was causally related to his accepted employment injury of right foot
gout.

10

S.S., 59 ECAB ___ (Docket No. 07-579, issued January 14, 2008).

11

Id.

12

J.M., 58 ECAB ___ (Docket No. 06-2094, issued January 30, 2007).

13

An unsigned medical report with no adequate indication that it was completed by a physician is not considered
probative medical evidence. See D.D., 57 ECAB 734 (2006); Merton J. Sills, 39 ECAB 572, 575 (1988).

5

An award of compensation may not be based on surmise, conjecture or speculation.14
Neither the fact that appellant’s condition became apparent during a period of employment nor
his belief that his condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.15 Causal relationship must be established by
rationalized medical opinion evidence.16 As appellant failed to submit such evidence, the Office
properly denied his claim for compensation for the period January 5 to April 7, 2007.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that he was
entitled to wage-loss compensation for the period January 5 to April 7, 2007 causally related to
his accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 6, 2008 is affirmed.
Issued: January 6, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

14

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); D.E., 58 ECAB ___ (Docket No. 07-27,
issued April 6, 2007).
15

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); V.W., 58 ECAB ___ (Docket No. 07-234,
issued March 22, 2007).
16

Roy L. Humphrey, 57 ECAB 238 (2005); Dennis M. Mascarenas, 49 ECAB 215 (1997).

6


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

)
)
)
)
)
)
)

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

Docket No. 11-1232
Issued: January 9, 2012

Case Submitted on the Record

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

JURISDICTION
On April 26, 2011 appellant, through her attorney, filed a timely appeal from an April 1,
2011 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
traumatic injury in the performance of duty on March 18, 2008.
FACTUAL HISTORY
On August 15, 2008 appellant, then a 51-year-old city carrier, filed a traumatic injury
claim alleging that she sprained her right leg and left knee when she fell down icy stairs on
March 18, 2008. She stopped work on March 24, 2008. The employing establishment
1

5 U.S.C. § 8101 et seq.

controverted the claim on the grounds that appellant waited almost five months before notifying
her supervisor about an injury.
An April 9, 2008 work status form signed by Dr. Susan M. Sarran, a Board-certified
family practitioner, advised that appellant be placed on modified duty. In April 10 and May 17,
2008 treatment notes, Dr. Kevin Moore, a chiropractor, related that appellant experienced right
leg and lower back symptoms and recommended work restrictions.2
OWCP informed appellant in an August 26, 2008 letter that additional evidence was
needed to establish her claim. It gave her 30 days to submit a factual statement describing the
March 18, 2008 employment incident and a medical report from a physician explaining how this
event caused or contributed to her condition.
Appellant detailed in a September 26, 2008 statement that she was descending steps
during a delivery on March 18, 2008 when she slipped, landed on her back and bruised her right
side. She later informed her supervisor of the incident after she returned to the station, but did
not file a claim because she thought she would recover. Appellant resumed work on
September 16, 2008, but stopped shortly afterward because she was unable to perform her
normal duties. In a September 19, 2008 eyewitness statement, Florida Ester, a resident, asserted
that she saw appellant fall down icy steps on or around March 19, 2008.
A July 22, 2008 magnetic resonance imaging (MRI) scan of the left knee obtained by
Dr. Douglas M. Gregerson, a chiropractic radiologist, exhibited degenerative joint disease
involving the medial and patellofemoral compartments, mild joint effusion and mild patellar
tendinosis. A September 11, 2008 work status note from Dr. Samuel S. Park, a Board-certified
orthopedic surgeon, diagnosed knee osteoarthritis and released appellant to full duty effective
September 15, 2008.
By decision dated October 2, 2008, OWCP denied appellant’s claim, finding the medical
evidence insufficient to demonstrate that the accepted March 18, 2008 employment incident was
causally related to diagnosed condition.
Appellant’s counsel requested reconsideration on April 14, 2009 and submitted additional
medical evidence. A January 19, 2008 treatment note from Dr. Chadwick C. Prodromos, a
Board-certified orthopedic surgeon, diagnosed left knee chondromalacia while an April 7, 2008
note from Dr. Sarran diagnosed sacroiliac joint dysfunction and left iliotibial band tightness.
In May 17 and June 9, 2008 questionnaire forms, Dr. Moore assessed sacroiliac and
iliotibial band injuries resulting from appellant’s fall down stairs. He specifically diagnosed left
knee strain, sacroiliac strain and iliotibial band syndrome in a June 13, 2008 attending
physician’s report.3 In July 25 and October 24, 2008 reports, Dr. Moore related that appellant
fell in February or March 2008 and sustained right sacroiliac joint and iliotibial band injuries as
2

The case record contains various work status notes signed by Dr. Moore from April 28 to September 25, 2008.

3

Dr. Moore restated these findings in attending physician’s reports for the period July 23, 2008 to
February 16, 2009.

2

well as left knee pain. The knee subsequently worsened when she attempted to walk on her
delivery route. Dr. Moore diagnosed left patellar tendinitis, joint derangement and effusion.
In reports dated September 29, 2008, Dr. Prodromos remarked that prior physical therapy
sessions aggravated appellant’s left knee symptoms. On examination, he observed a left antalgic
gait, patellofemoral crepitus, anterior pain and effusion. X-rays demonstrated mild spurring and
diminution of the medial clear space while an MRI scan indicated patellar tendinosis.
Dr. Prodromos diagnosed severe left chondromalacia patellae. Treatment records for the period
October 27, 2008 to June 25, 2009 documented significant clinical improvements.
In an August 17, 2009 report, Dr. Prodromos related that appellant aggravated her left
chondromalacia patellae when she lifted a heavy package at work. On examination, he observed
effusion and patellofemoral crepitus. Dr. Prodromos also noted lateral patellar tilting in a
December 18, 2009 report.
Dr. Prodromos commented in a February 15, 2010 report that appellant continued to
experience left anterior and medial knee pain. He observed left medial joint line tenderness,
effusion, patellofemoral crepitus and a positive patellar compression test on examination.
Dr. Prodromos diagnosed left knee pain secondary to patellofemoral and medial compartment
arthrosis. Appellant elected to undergo surgery, which was scheduled for March 25, 2010.
In an August 11, 2010 report, Dr. Prodromos specified that appellant sustained a severe
full thickness articular cartilage defect of the knee.
On April 1, 2011 OWCP denied modification of the October 2, 2008 decision.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of her claim by the weight of reliable, probative and substantial evidence,4
including that she is an “employee” within the meaning of FECA and that she filed her claim
within the applicable time limitation.5 The employee must also establish that she sustained an
injury in the performance of duty as alleged and that her disability for work, if any, was causally
related to the employment injury.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time and place and in the manner alleged. Second, the employee must submit evidence, in

4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

5

R.C., 59 ECAB 427 (2008).

6

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

3

the form of medical evidence, to establish that the employment incident caused a personal
injury.7
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is 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
factors. 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.8
ANALYSIS
The case record supports that appellant was descending icy steps during a delivery on
March 18, 2008 when she slipped and fell down. Nonetheless, the Board finds that she did not
establish her traumatic injury claim because the medical evidence did not sufficiently establish
that this accepted employment incident caused or contributed to a right leg or left knee condition.
Appellant submitted numerous reports and treatment notes from Dr. Moore for the period
April 10, 2008 to February 16, 2009. The chiropractor diagnosed left knee strain, patellar
tendinitis, sacroiliac strain and iliotibial band syndrome, inter alia, and attributed these injuries
to her fall in either February or March 2008. As defined under FECA, a “physician” includes a
chiropractor only to the extent that his reimbursable services are limited to treatment consisting
of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist.9
Since Dr. Moore did not diagnose spinal subluxation based on an x-ray, he was not a “physician”
and his opinion regarding the cause of appellant’s left knee condition lacked evidentiary
weight.10
In September 29, 2008 and August 17, 2009 reports, Dr. Prodromos opined that past
physical therapy sessions and appellant’s lifting of a heavy package on the job aggravated her
left chondromalacia patellae. However, none of his reports addressed whether her condition was
causally related to the accepted March 18, 2008 employment incident.
Therefore,

7

T.H., 59 ECAB 388 (2008).

8

I.J., 59 ECAB 408 (2008).

9

5 U.S.C. § 8101(2); Merton J. Sills, 39 ECAB 572, 575 (1988). Subluxation means an incomplete dislocation,
off-centering, misalignment, fixation, or abnormal spacing of the vertebrae which must be demonstrable on any xray film to an individual trained in the reading of x-rays. 20 C.F.R. § 10.5(bb).
10

See Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (medical
opinion, in general, can only be given by a qualified physician). Even assuming, arguendo, that Dr. Moore met
FECA’s criteria, his opinion would be relevant only with regard to the spine itself. See George E. Williams, 44
ECAB 530 (1993).

4

Dr. Prodromo’s opinion was of diminished probative value.11 Finally, the medical records
signed by Drs. Gregerson, Park and Sarran were of limited probative value because none offered
an opinion on the cause of appellant’s injury.12 In the absence of rationalized medical opinion
evidence explaining how the March 18, 2008 fall caused an injury, appellant failed to meet her
burden.
Appellant’s counsel contends on appeal that the April 1, 2011 decision was contrary to
fact and law. As noted, the medical evidence remained insufficient to demonstrate that the
accepted March 18, 2008 employment incident was causally related to right leg or left knee
condition.
The Board notes that appellant submitted new evidence after issuance of the April 1,
2011 decision. The Board lacks jurisdiction to review evidence for the first time on appeal.13
However, appellant may submit new evidence or argument as part of a formal written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that she sustained a traumatic injury in
the performance of duty on March 18, 2008.

11

John W. Montoya, 54 ECAB 306, 309 (2003). See also M.W., 57 ECAB 710 (2006); James A. Wyrick, 31
ECAB 1805 (1980) (medical opinions based on an incomplete or inaccurate history are of diminished probative
value).
12

J.F., Docket No. 09-1061 (issued November 17, 2009); S.E., Docket No. 08-2214 (issued May 6, 2009).

13

20 C.F.R. § 501.2(c).

5

ORDER
IT IS HEREBY ORDERED THAT the April 1, 2011 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: January 9, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 19-1606
Issued: November 16, 2020

Case Submitted on the Record

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

JURISDICTION
On July 23, 2019 appellant filed a timely appeal from a June 25, 2019 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.3
1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the June 25, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for
the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish disability from work
for the periods July 27 to August 15, 2018 and September 15 to December 7, 2018 causally related
to her accepted January 24, 2014 employment injury.
FACTUAL HISTORY
On January 24, 2014 appellant, then a 43-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that date she injured her back and right knee when she slipped
on icy steps delivering mail while in the performance of duty. OWCP accepted the claim for
lumbar strain. It subsequently expanded acceptance of the claim to include an aggravation of
spondylolisthesis of the lumbosacral region at L5-S1 and an aggravation of lumbar spondylosis
with radiculopathy at L5. OWCP paid appellant wage-loss compensation for disability beginning
March 22, 2014. On April 21, 2014 appellant underwent an L5-S1 laminectomy with arthrodesis
and pedicle screws. On March 10, 2016 she underwent a spinal cord stimulator trial insertion.
Appellant resumed her usual employment without restrictions on June 18, 2016. On August 6,
2016 she was in a nonemployment-related motorcycle accident.
In a report dated June 26, 2018, Dr. Joey P. Thomas, a Board-certified anesthesiologist,
evaluated appellant for low back pain radiating into the hips bilaterally. He noted that her pain
had begun in January 2014 after she fell at work and had worsened after she twisted her back
exiting a mail truck on May 21, 2018. Dr. Thomas reviewed diagnostic studies and appellant’s
treatment history. On examination he found tenderness to palpation of the lumbar spine and
paravertebral muscle spasms. Dr. Thomas diagnosed chronic pain, spondylosis of the lumbosacral
joint without myelopathy, and neuropathic pain.
On August 2, 2018 Dr. Thomas discussed appellant’s complaints of bilateral leg weakness
and low back pain radiating throughout the right lower extremity. He noted that her pain had
increased over the prior two weeks when her job changed such that she had to walk a 14-mile route
each day. Dr. Thomas advised that appellant indicated that she had an injury at work on
January 24, 2014 and was in a motorcycle accident in August 2016. On examination he found
sacroiliac joint tenderness, a flattened lordosis, bilateral paraspinal tenderness, restricted and
painful range of motion in the lumbar spine, an antalgic gait, sacroiliac joint tenderness on the
right side, and a dorsal column battery pack in her left lower back. Dr. Thomas diagnosed chronic
pain, lumbosacral spondylosis without myelopathy, and post laminectomy syndrome of the lumbar
region. He found that appellant should not work from July 28 to August 15, 2018.
In an August 15, 2018 report, Dr. Kenneth Rich, a Board-certified neurosurgeon, discussed
appellant’s complaints of back pain with right sciatica for several years and weakness in the legs
bilaterally for the past six months. He noted that her history included an L5-S1 lumbar fusion, a
dorsal column stimulator, sacroiliac injections, and a rhizotomy. Dr. Rich diagnosed chronic
midline low back pain with right-sided sciatica.
An August 28, 2018 magnetic resonance imaging (MRI) scan of appellant’s lumbar spine,
interpreted by Dr. Gerald Capps, a Board-certified radiologist, revealed that the right foramen was
compromised at L5-S1 and that the left foramen was patent. There were shallow bulge/herniations
at L1-2, L3-4, and L4-5 and little interval change at those levels when compared with a prior study.
2

In progress reports dated September 6, 2018, Dr. Rich indicated that appellant had
experienced low back pain and predominantly right-sided sciatica since a 2014 workplace fall. He
noted that her medical history included a lumbar fusion at L5-S1 and a spinal cord stimulator
implant, and that she had continued to have back and right-sided leg pain after the surgery.
Dr. Rich encouraged appellant to continue working as long as it was not too painful for her. On
examination he found an antalgic gait. Dr. Rich noted that a lumbar MRI scan displayed the L5S1 fusion and foraminal stenosis at L5-S1 on the right. He diagnosed lumbar radiculopathy and
chronic right low back pain with right sciatica.
On September 10, 2018 appellant requested that OWCP provide authorization for
corrective surgery, explaining that the hardware implanted in her back had failed and was resting
on a nerve.
A September 12, 2018 medical report by Dr. Thomas discussed appellant’s complaints of
low back pain and diagnosed chronic pain and lumbosacral spondylosis without myelopathy. He
performed a sacroiliac joint injection.
On September 18, 2018 Dr. Leonard Nelson, a Board-certified orthopedic surgeon,
discussed appellant’s complaints of low back pain that had begun in the fall of 2015 when she
broke her vertebrae at L5. He noted, “[Appellant] indicates this is not a workplace injury. She
indicates this is not a result of a motor vehicle accident. The pain started eight years ago. At one
time it was a workman’s comp[ensation] injury. Not now.” Dr. Nelson discussed appellant’s
history of two laminectomies, a fusion, and placement of a spinal cord stimulator. On examination
he found an antalgic gait to the right with some weakness and calf atrophy. Dr. Nelson diagnosed
a possible nonunion lumbar spine fusion with persistent right sciatica. He indicated that appellant
needed surgery and that her left S1 screw may be infected.
In a work note dated September 26, 2018, Dr. Rich advised that appellant could not
perform her work duties due to debilitating pain, that she was scheduled to have surgery on
October 5, 2018 and that she would need three months to recover.
An October 2, 2018 computerized tomography (CT) scan of appellant’s lumbar spine,
interpreted by Dr. Michael Ross, a Board-certified radiologist, revealed posterior and anterior
fusions at L5-S1 and a geographic lucency surrounding the left L5 pedicle screw extending
inferiorly within the L5 vertebral body that might represent osteolysis. A calcified disc osteophytic
complex extending into the right ventral lateral canal at L5-S1 with moderate-to-severe right L5
foraminal stenosis and mild degenerative findings were also identified.
In an October 24, 2018 report, Dr. Nelson discussed appellant’s history of low back pain
and again recounted that she indicated that this was not considered a workplace injury. He
reviewed his surgical findings, which included the possibility of heterotopic bone from bone
morphogenic protein as a result of an April 2014 surgery. Dr. Nelson noted, “[Appellant’s]
surgery in 2014 was a direct result of her on-the-job injury in January 2014 and I contend the
surgical procedure and her present disability is based upon her on-the-job work injury on
January 24, 2014….” He further noted that he had found a lesion within the L5 vertebral body
that was also a direct result of her April 2014 surgery. Dr. Nelson opined that appellant was
currently unable to work due to her surgery.

3

On October 30, 2018 Dr. Thomas discussed appellant’s complaints of chronic right hip
pain since her fall on ice in 2014. On examination of the hip he found tenderness to palpation of
the bursa, but otherwise normal results. Dr. Thomas diagnosed chronic pain, lumbosacral
spondylosis without myelopathy, and trochanteric bursitis.
In a work note dated October 30, 2018, Dr. Rich indicated that appellant could return to
part-time work on October 13, 2018 without lifting.
In a November 14, 2018 statement, appellant indicated that in January 2014 she had fallen
on ice injuring her lower back. She had L5-S1 surgery on April 21, 2014, but continued to
experience back pain and began noticing weakness in her legs. Dr. Rich informed appellant that
she had a pinched nerve and that her hardware might have loosened. Appellant had surgery on
October 5, 2018 and during the procedure physicians discovered that bone had grown on the nerve.
She asserted that the bone resulted from bone morphogenic protein, which was the chemical used
in her 2014 surgery.
In an e-mail dated November 15, 2018, the employing establishment indicated that
appellant had returned to her usual employment following an injury. Appellant was subsequently
in a motorcycle accident and had surgery. Her physician released her to part-time employment
with restrictions, which it was unable to accommodate.
A November 15, 2018 work note from Dr. Rich opined that appellant could return to work
for four hours a day with a 20-pound weight restriction, per her own request. On November 19,
2018 he found that she could not return to work due to physical incapability.
On November 23, 2018 appellant filed claims for wage-loss compensation (Form CA-7)
for July 27, 2018 and the periods July 28 to August 3, August 4 to 15, September 15 to 28,
September 29 to October 12, October 13 to 26, and October 27 to November 9, 2018. On
November 29, 2018 she filed a Form CA-7 requesting wage-loss compensation from November 10
to 23, 2018 and on December 12, 2018 she filed a Form CA-7 requesting wage-loss compensation
from November 24 to December 7, 2018.
In development letters dated November 26 and December 4 and 14, 2018, OWCP informed
appellant that she had not submitted sufficient evidence in support of the claimed periods of
disability. It requested additional evidence to establish disability from work during the period
claimed. OWCP afforded appellant 30 days for response.
In a November 27, 2018 report, Dr. Thomas noted that appellant complained of sharp right
hip pain radiating down her leg, back pain, and muscle spasms. He diagnosed chronic pain and
post laminectomy syndrome of the lumbar spine.
In a December 3, 2018 work note, Dr. Rich indicated that appellant could return to work
on December 4, 2018 lifting no more than 20 pounds.
On December 5, 2018 Dr. Nelson noted that appellant’s right sciatica had improved after
a spinal decompression and fusion two months earlier. He also noted that on January 24, 2014 she
had fallen on ice while at work and had broken her lumbar vertebra, which caused a pinched nerve
and pain in her right leg. Appellant underwent surgery to treat these conditions on April 21, 2014,
4

but she continued to have right leg pain, sciatica, and a pinched nerve. She resumed work, but her
pain increased such that she could no longer work beginning July 27, 2018. Dr. Nelson noted,
“Due to the same right sciatica and right leg pain and pinched nerve pain that occurred on
January 24, 2014 [appellant] underwent a revision spinal fusion and decompression of that
nerve….” He indicated that appellant could return to regular-duty work on December 6, 2018.
Dr. Nelson attributed the right sciatica directly to the January 24, 2014 fall and resultant surgery.
In a duty status report (Form CA-17) of even date, he indicated that appellant could resume work
on December 6, 2018.
In a report of work status (Form CA-3) dated December 7, 2018, the employing
establishment noted that appellant had stopped work on November 10, 2018 due to surgery4 and
had returned to full-time regular-duty work on December 7, 2018.
By decision dated December 18, 2018, OWCP found that appellant had failed to establish
that she was disabled beginning July 27, 2018 causally related to her accepted employment injury.
It found that the evidence was insufficient to establish that she was disabled due to a worsening of
her accepted condition, noting that she had sustained multiple intervening injuries.
Subsequently, OWCP received a November 25, 2014 lumbar MRI scan and a March 23,
2017 thoracic spine CT scan.
In the October 5, 2018 operative report, Dr. Rich indicated that he and Dr. Nelson removed
nonsegmental hardware at L5-S1 bilaterally to expose and decompress exiting L5 and transitioning
S1 nerve roots. He noted that there appeared to be some bone in Kambin’s zone, which was similar
to what occurs when bone morphogenic protein is placed in the disc space. The bone was
contacting the L5 and S1 nerve roots and Dr. Rich broke up and removed some of it to expose and
decompress the L5 and S1 nerve roots.
On December 31, 2018 appellant, through counsel, requested a telephonic hearing before
a representative of OWCP’s Branch of Hearings and Review.
Additional pages from the October 24, 2018 medical report by Dr. Nelson indicated that
appellant presented with low back pain, numbness, and tingling. Appellant advised that her current
medical condition started in the fall of 2014 from broken L5 vertebrae which was a work-related
injury or was from a nonwork-related motor vehicle accident.
During the April 10, 2019 telephonic hearing, appellant testified that her claimed period of
disability was due to her originally accepted employment injury of slipping on ice.
By decision dated June 25, 2019, an OWCP hearing representative affirmed the
December 18, 2018 decision. She found that appellant had not submitted reasoned medical
evidence supporting that appellant was disabled due to her employment injury.

4
The record as transmitted to the Board does not indicate that OWCP has issued a final decision on appellant’s
request for surgical authorization for this procedure.

5

LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim.6 Under FECA the term disability means incapacity, because
of an employment injury, to earn the wages that the employee was receiving at the time of injury.7
For each period of disability claimed, the employee has the burden of proof to establish that he or
she was disabled from work as a result of the accepted employment injury.8 Whether a particular
injury causes an employee to become disabled from work, and the duration of that disability, are
medical issues that must be proven by a preponderance of probative and reliable medical opinion
evidence.9
For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work as a result of the accepted employment injury.10 Whether a
particular injury causes an employee to become disabled from work, and the duration of that
disability, are medical issues that must be proved by a preponderance of probative and reliable
medical opinion evidence.11
The Board has interpreted 5 U.S.C. § 8103, which requires payment of expenses incidental
to the securing of medical services, as authorizing payment for loss of wages incurred while
obtaining medical services.12 An employee is entitled to disability compensation for any loss of
wages incurred during the time he or she receives authorized treatment and for loss of wages for
time spent incidental to such treatment. The rationale for this entitlement is that, during such
required examinations and treatment and during the time incidental to undergoing such treatment,
an employee did not receive his or her regular pay.13
ANALYSIS
The Board finds that the case is not in posture for decision.
Appellant filed CA-7 forms requesting wage-loss compensation from July 27 to August 15,
2018 and September 15 to December 7, 2018. OWCP denied her claims, finding that the evidence
was insufficient to establish that she was disabled due to her accepted employment injury. During
5

Supra note 2.

6

See L.S., Docket No. 18-0264 (issued January 28, 2020); B.O., Docket No. 19-0392 (issued July 12, 2019).

7

20 C.F.R. § 10.5(f); J.S., Docket No. 19-1035 (issued January 24, 2020).

8

T.W., Docket No. 19-1286 (issued January 13, 2020).

9

S.G., Docket No. 18-1076 (issued April 11, 2019); Fereidoon Kharabi, 52 ECAB 291 (2001).

10

J.C., Docket No. 18-1474 (issued March 20, 2019); Dominic M. Descaled, 37 ECAB 369 (1986).

11

J.C., id. See Amelia S. Jefferson, 57 ECAB 183 (2005).

12

5 U.S.C. § 8103; Y.H., Docket No. 17-1303 (issued March 13, 2018).

13

A.V., Docket No. 19-1575 (issued June 11, 2020); Sean O Connell, 56 ECAB 195 (2004).

6

this period, however, appellant requested authorization for and underwent surgery on her low back
on October 5, 2018 which her physician attributed to her accepted employment injury.
The Board finds that OWCP should have adjudicated the issue of whether appellant’s
surgery was causally related to her accepted employment injury prior to reaching its finding on
disability.
In a report dated September 18, 2018, Dr. Nelson diagnosed a possible nonunion of a
lumbar spinal fusion with persistent sciatica on the right side. He opined that appellant required
surgery and that she might have an infected left S1 screw.
On October 5, 2018 Dr. Rich and Dr. Nelson performed a removal of nonsegmental
hardware at L5-S1 bilaterally. Dr. Rich noted that there appeared to be bone in the Kambin’s zone,
which occurred when bone morphogenic protein was placed in the disc space. The bone contacted
the L5 and S1 nerve roots. Dr. Rich broke up the bone to decompress the nerve roots at L5 and
S1.
On October 24, 2018 Dr. Nelson provided a history of appellant experiencing back pain
from a broken L5 vertebra that had occurred in the fall of 2014. He advised that she had undergone
surgery in 2014 as a result of her January 24, 2014 employment injury. Dr. Nelson attributed
appellant’s need for additional surgery and current disability to the accepted employment injury,
noting that he had found possible heterotopic bone from bone morphogenic protein due to her
April 2014 surgery and a lesion at L5 directly caused by her April 2014 surgery. He opined that
she was disabled from employment.
In a December 5, 2018 report, Dr. Nelson obtained a history of appellant falling on ice at
work on January 24, 2014 breaking her lumbar vertebra. Appellant underwent surgery in
April 2014. Dr. Nelson advised that she had continued to experience sciatica and pain on the right
side such that she was unable to work beginning July 27, 2018. He attributed appellant’s right
sciatica and need for a spinal fusion revision on October 5, 2018 to the January 24, 2014
employment injury.
The Board finds that the reports from Dr. Nelson are sufficient to require further
development of the medical evidence. Dr. Nelson is a Board-certified physician in orthopedic
surgery who is qualified in his field of medicine to render rationalized opinions on the issue of
causal relationship and he provided a comprehensive understanding of the medical record and case
history. He provided a pathophysiological examination for how appellant’s prior surgery for her
accepted employment injury caused a lesion on her back necessitating further surgery. The Board
has long held that it is unnecessary that the evidence of record in a case be so conclusive as to
suggest causal connection beyond all possible doubt. Rather, the evidence required is only that
necessary to convince the adjudicator that the conclusion drawn is rational, sound, and logical.14
As Dr. Nelson’s medical opinion is rationalized and logical, it is sufficient to require further
development of appellant’s claim.15

14

S.M., Docket No. 19-1634 (issued August 25, 2020); W.M., Docket No. 17-1244 (issued November 7, 2017).

15

Id.

7

It is well established that proceedings under FECA are not adversarial in nature, and that,
while appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence to see that justice is done.16 The nonadversarial
policy of proceedings under FECA is reflected in OWCP’s regulations at section 10.121.17
On remand, OWCP shall refer appellant, a statement of accepted facts, and the medical
record to a specialist in the appropriate field of medicine for a reasoned opinion regarding whether
it should authorize her October 5, 2018 surgery as medically necessary and causally related to her
employment injury and whether she sustained any employment-related periods of disability from
work after June 27, 2018.
Additionally, as noted above, an employee is entitled to disability compensation for any
loss of wages incurred during the time he or she receives authorized treatment and for lost wages
for time spent incidental to such treatment.18 On remand, OWCP shall also consider whether
appellant should be compensated for any time lost to obtain medical treatment due to her accepted
employment injury.19 Following this and such further development as OWCP deems necessary, it
shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

16

R.M., Docket No. 20-0342 (issued July 30, 2020); S.C., Docket No. 19-0920 (issued September 25, 2019).

17

20 C.F.R. § 10.121.

18

Supra note 12.

19
For a routine medical appointment, a maximum of four hours of compensation may be allowed. However, longer
periods of time may be allowed when required by the nature of the medical procedure and/or the need to travel a
substantial distance to obtain the medical care. The claims for wage loss should be considered on a case-by-case basis.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Compensation Claims, Chapter 2.901.19(c) (February 2013).

8

ORDER
IT IS HEREBY ORDERED THAT the June 25, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: November 16, 2020
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.W., Appellant
and
U.S. POSTAL SERVICE, NORTH TEXAS
PROCESSING & DISTRIBUTION CENTER,
Coppell, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 20-0448
Issued: March 4, 2022

Case Submitted on the Record

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

JURISDICTION
On December 23, 2019 appellant filed a timely appeal from a December 3, 2019 merit
decision of the Office of Workers’ Compensation Programs. 1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 3

1
Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). By order dated November 18,
2020, the Board exercised its discretion and denied the request, finding that the arguments on appeal could adequately
be addressed in a decision based on a review of the case record. Order Denying Request for Oral Argument, Docket
No. 20-0448 (issued November 18, 2020).
2
3

5 U.S.C. § 8101 et seq.

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

ISSUES
The issues are: (1) whether OWCP appellant received an overpayment of compensation in
the amount of $6,905.83 for the period October 12, 2018 through January 5, 2019 because she
continued to receive disability compensation following her return to work; (2) whether it properly
found that appellant was at fault in the creation of the overpayment and, therefore, precluded from
waiver of recovery; and (3) whether OWCP properly determined that appellant abandoned her
request for a prerecoupment hearing.
FACTUAL HISTORY
On August 1, 2017 appellant, then a 24-year-old clerk, filed a traumatic injury claim (Form
CA-1) alleging that on July 17, 2017 she sustained a left knee injury when her foot hit the bottom
of a trailer and her knee buckled back while in the performance of duty. She stopped work on
July 31, 2017. OWCP initially accepted the claim for left knee contusion, sprain, effusion, and
later expanded the acceptance of the claim to include a left knee lateral meniscus tear. It paid
appellant wage-loss compensation on the supplemental rolls as of September 17, 2017 and on the
periodic rolls as of November 12, 2017.
OWCP advised appellant on September 28, 2017 that she was expected to return to work
as soon as she was able, and it was her responsibility to advise the employing establishment once
her physician found her capable of returning to work. It also advised appellant that once she
returned to work she should notify OWCP and return payment for any period worked to prevent
an overpayment of compensation. OWCP advised appellant that, if she worked during any portion
of the covered period and compensation payments were received via either paper check or for
payments sent by electronic funds transfer (EFT), she was to return the payment to OWCP even if
she had already advised OWCP that she was working.
The employing establishment offered appellant a full-time modified assignment (limited
duty) as a mail processing clerk on October 4, 2018, which appellant accepted on
October 10, 2018.
In an e-mail to OWCP dated January 23, 2019, a health and resource management
specialist at the employing establishment noted that appellant had returned to work on
October 12, 2018.
In an automated compensation payment system (ACPS) worksheet dated January 28, 2019,
OWCP calculated that appellant’s overpayment amount for the period October 12, 2018 through
January 5, 2019 was $6,905.83. It noted that appellant was paid $158.86 for the period October 12
through 13, 2018 and $2,248.99 for each subsequent 28 -calendar-day period through
January 5, 2019.
In a preliminary overpayment determination dated July 8, 2019, OWCP advised appellant
that an overpayment of compensation in the amount of $6,905.83 had been created because she
returned to work full time on October 12, 2018, but continued to receive wage-loss compensation
through January 5, 2019. Appellant’s 28-day net compensation payment for September 16
through October 13, 2018 was $2,224.07, while her 28-day net compensation payment for the three

2

subsequent 28-day periods through January 5, 2019 was $2,248.99. OWCP provided its
computation of the amount of the overpayment for this period, dividing her 28-day compensation
during the relevant periods by 28 to arrive at a daily rate, then multiplying the daily rate by the
number of days appellant was overpaid. It made the preliminary finding that appellant was at fault
in the creation of the overpayment, as she accepted payments she knew or should have known to
be incorrect. OWCP advised appellant that she received a paper compensation check with the
printed period of payment and the amount paid and she should have rea sonably known that the
payment was incorrect because the dates overlapped with the period she worked ; therefore, she
accepted a payment she knew or reasonably should have known was incorrect. It afforded
appellant 30 days to submit additional evidence and argument and to request a hearing.
On August 2, 2019 appellant requested a prerecoupment hearing on an overpayment action
request form and contested the fact of the overpayment, the amount of the overpayment, and the
preliminary finding of fault, requesting a waiver. She completed an overpayment recovery
questionnaire (Form OWCP-20) and explained that she had reported her return to full-time work
in October 2018. Appellant noted that it took so long to “get my checks started” she believed the
checks were money she was due.
In a letter dated October 2, 2019, OWCP’s hearing representative notified appellant that a
telephonic hearing was scheduled for Tuesday, November 19, 2019 at 2:30 p.m. Eastern Standard
Time (EST). The notice provided the appropriate toll-free number and passcode for the hearing.
OWCP’s hearing representative mailed the notice to appellant’s last known address of record.
Appellant did not appear for the hearing.
By decision dated December 3, 2019, OWCP determined that appellant had abandoned her
request for a prerecoupment hearing. It indicated that appellant had received 30 days advanced
written notice of the hearing scheduled for November 19, 2019, but that she failed to appear.
OWCP further noted that there was no indication in the record that appellant had contacted it either
prior to, or within 10 days after the hearing to request a postponement or provide an explanation
to OWCP for her failure to appear at the hearing. Consequently, appellant was deemed to have
abandoned her request for an oral hearing.
OWCP also finalized the preliminary overpayment determination that an overpayment of
compensation in the amount of $6,905.83 for the period October 12, 2018 through January 5, 2019
was created. It found that appellant was at fault in the creation of the overpayment and required
recovery in full.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA4 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 duty. 5 Section 8129(a) of FECA provides, in pertinent part, that when an
overpayment has been made to an individual under this subchapter because of an error of fact or
4

5 U.S.C. §§ 8101-8193.

5

Id. at § 8102(a).

3

law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled. 6
A claimant is not entitled to receive temporary total disability and actual earnings for the
same period. 7 OWCP regulations provide that compensation for wage loss due to disability is
available only for any periods during which an employee’s work-related medical condition
prevents him or her from earning the wages earned before the work-related injury.8
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$6,905.83 for the period October 12, 2018 through January 5, 2019 because she continued to
receive disability compensation following her return to work.
OWCP paid appellant wage-loss compensation for disability on the periodic rolls. The
evidence reflects that appellant returned to work, full time, on October 12, 2018. Appellant
continued to receive wage-loss compensation through January 5, 2019. A claimant is not entitled
to receive temporary total disability benefits and actual earnings for the same time period. 9
Accordingly, the Board finds that appellant received an overpayment of compensation.10
The record shows that OWCP calculated that, from October 12, 2018 through January 5,
2019, appellant received $6,905.83 in total net compensation, but was not entitled to any
compensation during this time period. OWCP explained that appellant was paid $158.86 for the
period October 12 through 13, 2018 and $2,248.99 for each subsequent 28 -calendar day period
through January 5, 2019.11 The Board finds that OWCP properly determined that appellant
received an overpayment of compensation in the amount of $6,905.83 for the period October 12,
2018 through January 5, 2019.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA provides that adjustment or recovery by the United States may
not be made when incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of this subchapter or would be against

6

Id. at § 8129(a).

7

See M.S., Docket No. 16-0289 (issued April 21, 2016); D.B., Docket No. 15-0258 (issued February 1, 2016).

8

See C.V., Docket No. 16-0986 (issued September 1, 2016); 20 C.F.R. § 10.500.

9

Supra note 7.

10

J.M., Docket No. 17-1574 (issued February 8, 2018).

11

The daily rate for the period September 16 through October 13, 2018 was $79.43. The daily rate for the periods
during October 14, 2018 through January 5, 2019 was $80.32.

4

equity and good conscience.12 No waiver of an overpayment is possible if the claimant is at fault
in creating the overpayment.13
On the issue of fault 20 C.F.R. § 10.433(a) provides that an individual is with fault in the
creation of an overpayment who: (1) made an incorrect statement as to a material fact which the
individual knew or should have known to be incorrect; or (2) failed to furnish information which
the individual knew or should have known to be material; or (3) with respect to the overpaid
individual only, accepted a payment which the individual knew or should have been expected to
know was incorrect. 14
With respect to whether an individual is without fault, section 10.433(b) of OWCP’s
regulations provide that whether or not OWCP determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those circumstances
and the individual’s capacity to realize that he or she is being overpaid. 15
Even if an overpayment resulted from negligence by OWCP, this does not excuse the
employee from accepting payment, which the employee knew or should have been expected to
know she was not entitled. 16
ANALYSIS -- ISSUE 2
The Board finds that the case is not in posture for decision.
In order for it to establish that appellant was at fault in the creation of the overpayment of
compensation, OWCP must establish that, at the time appellant received the compensation check
in question, she knew or should have known that the payment was incorrect. 17
The Board has explained that when a claimant returns to work and subsequently receives
a compensation check in the mail covering a period of employment, if he or she knows or should
have known that they were not entitled to such compensation, but decides nonetheless to cash or
deposit the check, the cashing or depositing of the check establishes fault.18
On September 28, 2017 OWCP advised appellant that she was to immediately inform it of
any return to work. It also advised appellant that if she continued to receive wage-loss
12

5 U.S.C. § 8129(b).

13

Gregg B. Manston, 45 ECAB 344, 354 (1994).

14

20 C.F.R. § 10.433(a). See Kenneth E. Rush, 51 ECAB 116, 118 (1999).

15

Id. at § 10.433(b).

16

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

17

J.H., Docket No. 17-0592 (issued May 1, 2018); Linda E. Padilla, 45 ECAB 768, 772 (1994).

18

See J.H., id.; William F. Salmonson, 54 ECAB 152 (2002).

5

compensation by check, but had worked during any period covered by a check, she had to return
the check, even if she had reported her return to work to OWCP. Thus, appellant should have
known that she could not receive wage-loss compensation by check after her return to work.
The Board finds that as the checks in question do not appear in the record, it is unable to
verify that the checks identified the period for which compensation was paid and , therefore, that
appellant should have known that the checks were compensation payments for the period following
which she had returned to work.
Accordingly, the Board finds that the case must be remanded to OWCP. OWCP shall scan
copies of the checks issued to appellant for the period October 12, 2018 through January 5, 2019
into to the case record. OWCP shall thereafter determine whether appellant knew or should have
known that she received an overpayment of compensation. OWCP shall then issue a new
preliminary overpayment determination regarding the issue of fault, with an overpayment action
request form, a Form OWCP-20 instructions for appellant to provide supporting financial
documentation. Following this and other such further development as deemed necessary, OWCP
shall issue a de novo decision.19
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $6,905.83 from October 12, 2018 through January 5, 2019. The
Board further finds, however, that this case is not in posture for decision as to whether appellant
was at fault in the creation of the overpayment.

19

In light of the Board’s disposition of Issue 2, Issue 3 is rendered moot.

6

ORDER
IT IS HEREBY ORDERED THAT the December 3, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further proceedings consistent with this decision of the Board.
Issued: March 4, 2022
Washington, DC

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

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

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

7