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

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

Docket No. 16-1788
Issued: May 15, 2017

Case Submitted on the Record

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

JURISDICTION
On September 7, 2016 appellant, through counsel, filed a timely appeal from a May 2,
2016 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.
ISSUE
The issue is whether appellant established that she has more than 16 percent permanent
impairment of the right upper extremity and 8 percent permanent impairment of the left upper
extremity for which she previously received schedule awards.
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.

On appeal counsel argues that Dr. William H. Spellman, a Board-certified orthopedic
surgeon and referee physician, did not perform a physical examination consistent with
requirements of the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (hereinafter A.M.A., Guides),3 that he gave a conclusory opinion that
was inconsistent with the statement of accepted facts (SOAF), and that he did not reference
electrodiagnostic testing. He also asserts that because Dr. Arnold T. Berman, an OWCP medical
adviser and Board-certified orthopedist, was part of the conflict in medical evidence, a new
OWCP medical adviser should have reviewed Dr. Spellman’s reports.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts set forth in the Board’s prior
decision are incorporated herein by reference. The relevant facts are as follows.5
On February 16, 2011 OWCP granted appellant a schedule award for 4 percent
permanent impairment of the left upper extremity and 13 percent of the right, for accepted
conditions of bilateral carpal tunnel syndrome and aggravation of a right wrist TFCC tear. This
was affirmed by an OWCP hearing representative on September 1, 2011 and OWCP denied
modification by decision dated February 2, 2012. Appellant subsequently appealed to the Board.
By decision dated January 10, 2013, the Board found the case not in posture for decision
as a conflict in medical opinion evidence had been created between Drs. Diamond and Slutsky
regarding the extent of appellant’s bilateral arm impairment. On remand OWCP was to refer
appellant to an impartial medical specialist to resolve the conflict, to be followed by a de novo
decision.6
In February 2013 OWCP referred appellant to Dr. Elliot Menkowitz, a Board-certified
orthopedic surgeon, for an impartial evaluation. In a February 25, 2013 report, Dr. Menkowitz
opined that he agreed with Dr. Slutsky that appellant had 4 percent permanent impairment of the
left arm and 13 percent on the right.7

3

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

4

Docket No. 12-1270 (issued January 10, 2013).

5

Under OWCP File No. xxxxxx600, on March 13, 2009 OWCP accepted that appellant, a mail handler, sustained
work-related bilateral carpal tunnel syndrome and aggravation of a right wrist triangular fibrocartilage complex
(TFCC) tear. In subsidiary File No. xxxxxx397, a claim for left carpal tunnel syndrome was denied on
January 23, 2009. Appellant underwent surgical decompression on the left on July 10, 2009 and on the right on
November 17, 2009, and returned to full-time work on June 1, 2010. On November 13, 2010 she filed a schedule
award claim (Form CA-7) and submitted a September 7, 2010 report in which Dr. Nicholas Diamond, an attending
osteopath, advised that she had 15 percent right arm permanent impairment and 12 percent on the left. In a
November 18, 2010 report, OWCP’s medical adviser, Dr. Morley Slutsky, Board-certified in occupational medicine,
disagreed with Dr. Diamond and found that appellant had 13 percent right arm permanent impairment and 4 percent
left arm permanent impairment.
6

Supra note 4.

7

All physicians who provided impairment evaluations in this case indicated they utilized the sixth edition of the
A.M.A., Guides.

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In reports dated April 7 and May 16, 2013, Dr. Berman, an OWCP medical adviser, noted
his review of the record, including Dr. Menkowitz’s report. He indicated that appellant had 16
percent right upper extremity permanent impairment and 8 percent on the left. By decision dated
May 17, 2013, OWCP granted appellant a schedule award for an additional 4 percent permanent
impairment of the left upper extremity impairment and an additional 3 percent on the right, for a
total of 8 percent left upper extremity permanent impairment and 16 percent on the right.
Appellant, through counsel, timely requested a hearing with a representative of OWCP’s
Branch of Hearings and Review. By decision dated August 7, 2013, an OWCP hearing
representative found Dr. Menkowitz’ report deficient and remanded the case to OWCP to obtain
a supplemental report from Dr. Menkowitz or refer appellant for a new referee evaluation.
Dr. Menkowitz was unable to complete a new evaluation as he was retiring. OWCP then
referred appellant to Dr. Spellman for an impartial evaluation.
In a January 24, 2014 report, Dr. Spellman advised that appellant had 13 percent right
arm permanent impairment and 4 percent left arm impairment. He noted that he examined
appellant on January 23, 2014. With regard to the right arm, Dr. Spellman utilized Table 15-21,
identifying a diagnosis of right median nerve below mid-forearm, and noting that under Table
15-14 she had a level 1 sensory deficit and 0 motor deficit. He found that appellant had a class 1
right upper extremity median nerve impairment of five percent. Dr. Spellman noted that
appellant also had an eight percent rating for the TFCC tear of the right wrist. Added to the 5
percent rating for peripheral nerve impairment, appellant had a total 13 percent right arm
impairment. For the left arm, Dr. Spellman found a grade modifier of 3 for testing, and
modifiers of 1 for history and physical findings, advised that appellant had an adjustment of -1,
and concluded that she had four percent permanent impairment.
In an October 12, 2015 supplemental report, Dr. Spellman advised that, based on the
information provided, while preexisting bilateral ulnar neuropathy and brachial plexopathy were
diagnosed in 2001, she did not have those conditions when examined by him and he did not
consider them in his impairment evaluation. As to his analysis of the TFCC tear, he referred to
his January 24, 2014 report. Dr. Spellman opined that the TFCC tear and compression of the
median nerve at the wrist, while in the same region, had symptoms and functional consequences
which were different and, therefore, the impairment values should be added. He concluded that
appellant had 13 percent right upper extremity permanent impairment and 4 percent for the left
upper extremity.
In a July 8, 2014 report, Dr. Slutsky, OWCP’s medical adviser, reviewed the medical
record, including Dr. Spellman’s reports. He agreed with Dr. Spellman that appellant had four
percent left upper extremity permanent impairment for carpal tunnel syndrome. Regarding the
right upper extremity, OWCP’s medical adviser indicated that appellant had eight percent
permanent impairment, due solely to the TFCC tear. He explained that only one diagnosis could
be used in a region, and the TFCC tear was the most impairing diagnosis of the right wrist which,
under Table 15-3, Wrist Regional Grid, yielded eight percent impairment on the right.8

8

The A.M.A., Guides, Chapter 15 provides that diagnoses in the particular regional grids that may alternatively
be rated using the range of motion (ROM) methodology are followed by an asterisk. The diagnosis of TFCC tear is
followed by an asterisk.

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By decision dated September 12, 2014, OWCP found that appellant was not entitled to
additional schedule awards for either the left upper extremity or the right. Appellant, through
counsel, timely requested a hearing. In a December 9, 2014 decision, a hearing representative
remanded the case to OWCP. He noted that OWCP erred when it referred the case to
Dr. Slutsky for review, as he had been on one side of the conflict in medical evidence. The
hearing representative further found that OWCP should have obtained a supplemental report
from Dr. Spellman regarding his application of the A.M.A., Guides.
OWCP thereafter referred the record to Dr. Berman, an OWCP medical adviser for
review. In a March 19, 2015 report, Dr. Berman noted his agreement with the upper extremity
impairment values found by Dr. Spellman, with January 24, 2012 as the date of maximum
medical improvement.
In a decision dated March 30, 2015, OWCP found that appellant was not entitled to a
schedule award greater than the 16 percent permanent impairment of the right upper extremity
and 8 percent permanent impairment of the left upper extremity previously awarded. Appellant,
through counsel, timely requested a hearing.
In a May 27, 2015 decision, an OWCP hearing representative remanded the case to
OWCP for clarification from Dr. Spellman. On remand OWCP was to prepare a new SOAF and
ask Dr. Spellman to clarify his opinion regarding whether appellant had preexisting bilateral
ulnar neuropathy or brachial plexopathy; ask that he acknowledge that he had reviewed the
electrodiagnostic studies dated June 25, 2001 and Dr. Scott Fried, an attending osteopath’s
May 7, 2002 report regarding this issue; ask whether appellant currently has any objective
findings to support ongoing bilateral ulnar neuropathy or brachial plexopathy, and specify the
supporting evidence for any opinion given;9 have him explain how the impairment for the
claimant’s right TFCC tear, carpal tunnel syndrome, brachial plexopathy, and bilateral ulnar
neuropathy was calculated, including referencing the specific criteria he used and citing the
applicable sections, tables, and pages from the sixth edition of the A.M.A., Guides; ask whether
he combined two diagnoses in the same region in consideration of the instructions found in
section 15.3f on page 419 in the A.M.A., Guides; and ask him to comment on the differences in
grade modifiers found by Dr. Berman in his March 19, 2015 report. Following this and further
development deemed necessary, OWCP was to issue a de novo decision.
On remand OWCP forwarded a new SOAF and a set of questions to Dr. Spellman. In
correspondence dated June 29, 2015, Dr. Spellman advised that his January 24, 2014 report
forwarded to OWCP was an incomplete draft version. These reports are, however, identical
other than the reversal of two paragraphs on page four. Each contains identical impairment
evaluations.
By decision dated November 18, 2015, OWCP found that appellant was not entitled to an
additional schedule award for upper extremity impairments. Appellant, through counsel, timely
9

The record includes a number of medical reports that did not include an impairment evaluation. From
September 10, 2008 to November 12, 2012, appellant was treated by Dr. A. Lee Osterman, Board-certified in
orthopedic and hand surgery. Dr. Fried submitted reports dated May 30, 2001 to March 24, 2016. Findings from
electrodiagnostic testing on June 25, 2001 included bilateral brachial plexus neuropathies and ulnar nerve
neuropathies at the elbow. Dr. Fried discussed examination findings in these areas on May 7, 2002.

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requested a hearing. Appellant was not present at the hearing, held on March 4, 2016. Counsel
argued that Dr. Spellman’s opinion was insufficient because he did not include a rating for the
preexisting ulnar neuropathy and branchial plexopathy and did not fully explain how he reached
his impairment conclusions.
In a May 2, 2016 decision, an OWCP hearing representative affirmed the November 18,
2015 decision, finding that Dr. Spellman’s supplemental reports corrected deficiencies outlined
in the March 30, 2015 decision and was sufficient to carry the weight of the medical evidence.
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
vested the authority to implement the FECA program with the Director of OWCP.10 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.11 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.12
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).13 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.14
Under the sixth edition of the A.M.A., Guides, entrapment neuropathy, such as carpal
tunnel syndrome, is addressed at section 15-4f.15 Having established the diagnosis of carpal
10

See 20 C.F.R. §§ 1.1-1.4.

11

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C.
§ 8107(c)(1).
12

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

13

See 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).
14

Isidoro Rivera, 12 ECAB 348 (1961).

15

Supra note 3 at 432 (6th ed. 2009).

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tunnel syndrome, the next step in the rating process is to consult Table 15-23, entitled
Entrapment/Compression Neuropathy Impairment.16 The table provides a series of grade
modifiers from zero to four and a range of corresponding upper extremity impairments from zero
to nine percent. Grade modifiers are assigned based on a combination of factors including test
findings, history, and physical findings.17
ANALYSIS
The issues on appeal are whether appellant established that she has more than 16 percent
permanent impairment of the right arm and 8 percent permanent impairment of the left arm, for
which she previously received schedule awards. The accepted conditions in this case are
bilateral carpal tunnel syndrome and aggravation of a TFCC tear of the right wrist. Appellant
received her schedule awards dated February 16, 2011 and May 17, 2013. OWCP subsequently
found that a conflict in medical evidence had been created between Dr. Diamond, an attending
osteopath, and Dr. Slutsky, an OWCP medical adviser, and ultimately referred her to
Dr. Spellman for an impartial evaluation.
With regard to the left upper extremity diagnosis of carpal tunnel syndrome, the Board
finds Dr. Spellman’s reports insufficient because he did not fully explain his analysis. In his
January 24, 2014 report, Dr. Spellman provided left arm analysis in accordance with Table 15-23
of the A.M.A., Guides.18 He indicated that appellant had test findings modifier of 3, and history
and physical findings modifiers of 2 each. Dr. Spellman then averaged the grade modifiers,
finding a grade modifier of 2, and chose the default value of five percent. He then found an
adjustment of -1, which yielded a total left upper extremity impairment of four percent.
However, Dr. Spellman failed to explain the basis of this adjustment. As noted, section 15.4 of
the A.M.A., Guides provides the method of evaluation upper extremity entrapment neuropathy.19
The rating process, utilizing Table 15-23, is described on pages 448 and 449 of the A.M.A.,
Guides. This indicates that to modify a default value, a functional scale grade should be used.
Dr. Spellman did not explain how he applied a functional scale score to adjust appellant’s left
upper extremity impairment rating by -1. Furthermore, he merely mentioned that an eight
percent rating for the TFCC tear had previously been accepted without providing an impairment
evaluation of this condition.
OWCP procedures provide that, where the case has been referred for an independent
medical evaluation to resolve a conflict as to the issue of permanent impairment, it is necessary
to route the file to a new OWCP medical adviser to review the calculations to ensure that the
referee physician appropriately used the A.M.A., Guides.20 Where a referee examination is
arranged to resolve a conflict created between a claimant’s physician and OWCP’s medical
16

Id. at 448-49.

17

Additional grade modifications are permitted using the QuickDASH (Disabilities of the Arm, Shoulder, and
Hand) functional assessment tool.
18

Supra note 12 at 449.

19

Id. at 432-50.

20

See supra note 10 at Chapter 2.808.6(g) (February 2013).

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adviser with respect to a schedule award issue, the same OWCP medical adviser should not
review the referee’s report for proper application of the A.M.A., Guides.21 In this case, after
receipt of Dr. Spellman’s supplemental report dated October 12, 2015, the record was not
forwarded to an OWCP medical adviser for review. For these reasons the case is not in posture
for decision regarding appellant’s left arm impairment, and the case must be remanded to
OWCP. On remand, OWCP should obtain a supplemental report from Dr. Spellman or refer her
to a new referee physician for a comprehensive impairment rating of appellant’s left upper
extremity. After this and such further development deemed necessary, OWCP shall issue a de
novo decision regarding the extent of appellant’s left upper extremity permanent impairment.
As to the right upper extremity, the Board also finds that the case is not in posture for
decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the diagnosis-based
impairment (DBI) or the ROM methodology when assessing the extent of permanent impairment
for schedule award purposes.22 The purpose of the use of uniform standards is to ensure
consistent results and to ensure equal justice under the law to all claimants.23 In T.H., the Board
concluded that OWCP physicians are at odds over the proper methodology for rating upper
extremity impairment, having observed attending physicians, evaluating physicians, second
opinion physicians, impartial medical examiners, and district medical advisers use both DBI and
ROM methodologies interchangeably without any consistent basis. Furthermore, the Board has
observed that physicians interchangeably cite to language in the first printing or the second
printing when justifying use of either ROM or DBI methodology. Because OWCP’s own
physicians are inconsistent in the application of the A.M.A., Guides, the Board finds that OWCP
can no longer ensure consistent results and equal justice under the law for all claimants.24
In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment.
In order to ensure consistent results and equal justice under the law for cases involving
upper extremity impairment, the Board will set aside the May 2, 2016 decision. Following
OWCP’s development of a consistent method for calculating permanent impairment for upper
extremities to be applied uniformly, and such other development as may be deemed necessary,
OWCP shall issue a de novo decision on appellant’s claim for an additional right upper extremity
schedule award.

21

Id.

22

T.H., Docket No. 14-0943 (issued November 25, 2016).

23

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

24

Supra note 22.

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Lastly, with regard to the assertion on appeal that Dr. Berman had been part of the
conflict in medical evidence, the conflict was established between Dr. Slutsky and Dr. Diamond.
Moreover, as Dr. Spellman found no physical examination evidence of brachial plexus
neuropathy or ulnar neuropathy on his examination, it was unnecessary for him to include these
in his impairment rating.
CONCLUSION
The Board finds this case not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the May 2, 2016 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded for further action consistent with
this decision.
Issued: May 15, 2017
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.O., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
CORRECTIONAL INSTITUTION, Dublin, CA,
Employer
__________________________________________

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

Docket No. 11-1892
Issued: August 13, 2012

Case Submitted on the Record

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

JURISDICTION
On August 11, 2011 appellant filed a timely appeal of February 14 and June 6, 2011
merit decisions of the Office of Workers’ Compensation Programs’ (OWCP) denying
compensation.1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.

1

Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction is computed
beginning on the day following the date of OWCP’s decision. See 20 C.F.R. § 501.3(f)(2). As OWCP’s merit
decision was issued on February 14, 2011, the 180-day computation begins on February 15, 2011. 180 days from
February 15, 2011 was August 15, 2011. Since using August 16, 2011, the date the appeal was received by the
Clerk of the Board, would result in the loss of appeal rights, the date of the postmark is considered the date of filing.
The date of the U.S. Postal Service postmark is August 11, 2011, which renders the appeal of the February 14, 2011
decision timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he was
intermittently totally disabled during the period July 30 through December 4, 2008; and
(2) whether appellant established that he was disabled from December 22 through 23, 2010.
FACTUAL HISTORY
On October 27, 2006 appellant, then a 40-year-old vocational training instructor, filed a
notice of occupational disease alleging that he developed right ankle discomfort, pain, swelling
and a limp due to his employment duty of standing six hours a day. OWCP noted that he had a
previous injury to his ankle in 1989 which was work related. Appellant underwent a right
subtalar joint fusion with local bone graft on December 7, 2007. By decision dated March 6,
2008, OWCP accepted his claim for aggravation of right ankle arthritis.
Appellant alleged that he sustained a consequential left knee injury as a result of his
accepted right ankle condition. On October 6, 2008 Dr. Road Al-Shaikh, an orthopedic surgeon,
recommended that appellant join a gymnasium to have access to stationary bicycles and a
swimming pool as he was unable to walk, run or hike due to his right ankle injury. He noted that
appellant received orthotics for both feet and recommended therapeutic shoes. Dr. Al-Shaikh
stated, “I believe that with proper therapeutic shoes and joining a gymnasium, [appellant] will be
able to perform his duties as a vocational training instructor.”
OWCP authorized leave buyback from November 27, 2006 through April 5, 2007 in the
amount of $8,640.72.
On October 29, 2008 Dr. Al-Shaikh indicated that on October 3, 2008 appellant reported
left knee pain. He described appellant’s December 2006 right subtalar joint fusion and work
duties of seven hours standing and walking on uneven surfaces as well as wearing safety shoes.
Dr. Al-Shaikh found left knee swelling, medial joint line tenderness and mild crepitus with
motion. He also found a positive McMurray’s test medially. Dr. Al-Shaikh stated:
“Because of [appellant’s] right ankle surgery, he has been compensating on his
left leg since December 2007. [He] has returned to his regular duties as an
instructor. Because of his current duties, he has placed much stress to his left leg
to be able to compensate for his right ankle. Because of the amount of hours and
the work [appellant] currently performs, this has affected [his] left leg,
specifically, his left leg/knee.”
Dr. Al-Shaikh concluded that appellant’s current left knee condition was a consequence
of his right ankle injury.
Dr. Al-Shaikh examined appellant on March 24, 2009 and stated that he injured his left
knee due to a twisting event when walking and over compensating from right ankle pain which
was associated with a work-related injury. He found moderate swelling in the left knee with
medial joint line tenderness, as well as mild crepitus with motion and a positive McMurray’s
sign medially. Dr. Al-Shaikh diagnosed internal derangement of the knee.

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In a report received by OWCP on May 13, 2009, Dr. Al-Shaikh stated that appellant
underwent left knee surgery on April 29, 2009 and that his disability commenced on that date.
He performed a left knee partial medial and lateral meniscectomy and patellofemoral
chondroplasty with plica resection on April 29, 2009.
OWCP authorized compensation from April 28 through July 5, 2009. Appellant returned
to full-duty work on July 6, 2009. By decision dated October 7, 2009, OWCP accepted his claim
for osteoarthritis of the ankles and feet, fracture of the right calcaneus, traumatic arthropathy of
the right ankle and foot, internal derangement of the left knee, malunion of a fracture on the left
and bilateral lower leg osteoarthritis.
On January 20, 2010 Dr. Al-Shaikh performed a right subtalar joint fusion realignment
with local bone graft and removal of hardware.
Appellant returned to work on
September 22, 2010.
On January 19, 2010 appellant indicated that he used sick leave beginning with six hours
on July 30, 2008 due to left knee pain. On January 27, 2009 he signed a claim for compensation
requesting compensation for leave buyback from July 30 through December 4, 2008.
In a letter dated February 19, 2010, OWCP requested additional factual and medical
evidence from appellant supporting his claim of intermittent total disability. It allowed 30 days
for a response.
By decision dated October 4, 2010, OWCP denied appellant’s claim for leave buyback
due to recurrent intermittent total disability for the period July 30 through December 4, 2008. It
found that he had not submitted the necessary medical opinion evidence. Appellant requested an
oral hearing before an OWCP hearing representative on October 29, 2010.
Dr. Al-Shaikh completed a report on October 27, 2010 addressing appellant’s sick leave
usage due to his left knee. He noted that appellant used sick leave pending approval of his left
knee condition. Dr. Al-Shaikh stated, “It is also agreed that [appellant] had reason to use sick
leave for this period or any other period not covered on this letter due to his pain to his left knee
which after examination it revealed positive for McMurray’s medially.” He noted that appellant
was instructed to “provide cold therapy to the left knee and to minimize excessive standing and
walking if possible when pain was present.” Dr. Al-Shaikh listed appellant’s dates of missed
work due to his left knee injury and pain as July 30, September 29 and 30, October 1 and 24,
November 10, 12 and 17 and December 2 and 4, 2008.
Appellant submitted a note from Dr. Al-Shaikh dated December 22, 2010 in which
Dr. Al-Shaikh examined appellant’s left knee, right ankle and left foot. Dr. Al-Shaikh stated that
appellant had a well-healed subtalar osteotomy with revision of previous fusion. He performed a
fluoroscopic evaluation of the osteotomy site with normal findings. Dr. Al-Shaikh noted that
appellant had significant localized pain to the calcaneocuboid joint which was significant with
inversion and eversion. He recommended a calcaneocuboid joint fusion and provided appellant
with orthotics. Dr. Al-Shaikh reported no change in work status.
Appellant filed a claim for compensation on December 30, 2010 requesting compensation
for leave without pay from December 22 through 23, 2010. OWCP notified appellant on
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January 13, 2011 that the December 30, 2010 claim for compensation was received. It requested
additional medical evidence and allowed 30 days for a response.
In a note dated January 17, 2011, Dr. Al-Shaikh stated that he examined appellant on
December 22, 2010 as a follow-up to the osteotomy. He noted that appellant reported pain
requiring over-the-counter medication to treat his left ankle condition. Dr. Al-Shaikh stated that
appellant required a calcaneocuboid joint fusion due to significant pain resulting from inversion
and eversion of this joint which resulted in removal from work to allow appellant time to recover
from pain and to avoid excessive walking and standing for a period of time.
By decision dated February 14, 2011, OWCP denied appellant’s claim for compensation
from December 22 to 23, 2010. It noted that Dr. Al-Shaikh’s December 22, 2010 report
indicated that appellant had no change in work status.
Appellant testified at the oral hearing on March 17, 2011. He stated that Dr. Al-Shaikh
advised him that when he had pain in his knee or ankle such that he could not go to work, not to
report to the physician’s office. Appellant noted that he used sick leave and did not have
physician’s excuses for the intermittent dates claimed.
On March 18, 2011 Dr. Al-Shaikh performed a right calcaneocuboid joint fusion for
calcaneocuboid degenerative joint disease.
In a report dated March 29, 2011, Dr. Al-Shaikh addressed appellant’s leave usage due to
his left knee. He noted that following the December 2006 surgery appellant compensated with
his left leg. Dr. Al-Shaikh noted that appellant’s left knee demonstrated a positive McMurray’s
test medially. He noted that appellant used his sick leave pending approval of his left knee
condition. Dr. Al-Shaikh stated, “It is also agreed that [appellant] had reason to use sick leave
for this periods or any other periods not covered on this letter due to his discomfort to his left
knee, which has previously revealed and tested positive for McMurray’s medially.” He listed
July 30, September 29 and 30, October 1 and 24, November 10, 12 and 17 and December 4,
2008 as dates that appellant missed work due to his left knee condition.
OWCP entered appellant on the periodic rolls on April 4, 2011.
By decision dated June 6, 2011, the hearing representative noted that appellant filed a
claim for compensation on January 27, 2009 requesting leave buyback for intermittent periods of
total disability from July 30 through December 4, 2008. She found that Dr. Al-Shaikh’s letters
of October 27, 2010 and March 29, 2011 were authorizations for appellant to self-certify his
disability during the period July 30 through December 4, 2008 and that appellant did not seek
medical attention on the dates for which disability was claimed. The hearing representative
concluded that there were no contemporaneous medical records supporting appellant’s disability
for work during the period claimed. She affirmed OWCP’s October 28, 2010 decision.

4

LEGAL PRECEDENT -- ISSUE 1 & 2
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.4 The term disability is
defined as the incapacity because of an employment injury to earn the wages the employee was
receiving at the time of the injury, i.e., a physical impairment resulting in loss of wage-earning
capacity.5
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative and substantial medical evidence.6 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that he hurts too much to work, without objective findings of disability
being shown, the physician has not presented a medical opinion on the issue of disability or a
basis for payment of compensation.7 The Board will not require OWCP to pay compensation for
disability in the absence of any medical evidence directly addressing the specific dates of
disability for which compensation is claimed. To do so would essentially allow employees to
self-certify their disability and entitlement to compensation.8
Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical evidence.9 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between 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 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.10 Neither the fact that
a disease or condition manifests itself during a period of employment nor the belief that the

3

5 U.S.C. §§ 8101-8193.

4

G.T., 59 ECAB 447 (2008); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

5

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
6

See Fereidoon Kharabi, 52 ECAB 291 (2001).

7

Id.

8

Id.

9

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

Leslie C. Moore, 52 ECAB 132 (2000).

5

disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.11
ANALYSIS -- ISSUE 1
Appellant filed a claim for compensation, alleging that he had intermittent periods of total
disability from July through December 2008 due to his consequential left knee injury. On
October 6, 2008 Dr. Al-Shaikh, an attending physician, recommended that appellant join a
gymnasium to have access to stationary bicycles and a swimming pool as he was unable to walk,
run or hike due to his right ankle injury. He did not mention appellant’s left knee condition or
any period of disability due to this condition. Dr. Al-Shaikh completed a note dated October 29,
2008 indicating that appellant reported knee pain on October 3, 2008. He concluded that
appellant’s current left knee condition was a consequence of his right ankle injury as the result of
over compensation as well as the prolonged standing and walking required in his job duties.
Dr. Al-Shaikh did not address any specific periods of disability due to this condition. In a note
dated March 24, 2009, he stated that appellant injured his left knee due to a twisting event when
walking and over compensating from right ankle pain which was associated with a work-related
injury. Dr. Al-Shaikh diagnosed internal derangement of the knee. He did not provide any
period of total disability due to appellant’s left knee condition. Dr. Al-Shaikh first attributed
disability to appellant’s left knee condition in his undated report received by OWCP on
May 13, 2009. He stated that appellant underwent left knee surgery on April 29, 2009 and that
his disability commenced on that date. The Board finds that there is no contemporaneous
medical evidence addressing any period of disability before April 29, 2009 due to appellant’s left
knee condition.
Appellant also submitted two similar reports from Dr. Al-Shaikh dated October 27, 2010
and March 29, 2011. Dr. Al-Shaikh noted that appellant used sick leave pending approval of his
left knee condition. He stated that appellant had reason to use sick leave due to pain in his left
knee. Dr. Al-Shaikh also stated, “It is also agreed that [appellant] had reason to use sick leave
for this period or any other period not covered on this letter due to his pain to his left knee….”
He listed appellant’s dates of missed work due to his left knee injury and pain as July 30,
September 29 and 30, October 1 and 24, November 10, 12 and 17 and December 2 and 4, 2008.
As noted, when a physician’s statements regarding an employee’s ability to work consist
only of repetition of the employee’s complaints that he hurts too much to work, without objective
findings of disability being shown, the physician has not presented a medical opinion on the
issue of disability or a basis for payment of compensation. Dr. Al-Shaikh’s 2010 and 2011
reports do not provide objective findings of disability other than a positive McMurray’s sign
medially and attribute appellant’s disability to pain. He did not explain why these findings
would result in intermittent periods of disability. Furthermore, Dr. Al-Shaikh appears to be
explicitly stating that appellant could self-certify his disability and entitlement to compensation
in contradiction of Board precedent.12 Due to the lack of findings and the general nature of these

11

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

12

See Kharabi, supra note 6.

6

reports, the Board finds that Dr. Al-Shaikh has not submitted sufficient medical opinion evidence
to support appellant’s intermittent total disability from July 30 through December 4, 2008.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
ANALYSIS -- ISSUE 2
Appellant has also alleged that he was totally disabled from December 22
through 23, 2010. He submitted a note dated December 22, 2010 in which Dr. Al-Shaikh
reported examining appellant’s left knee, right ankle and left foot. OWCP accepted appellant’s
claim for right subtalar joint fusion with local bone graft on December 7, 2007. It also accepted
his claim for aggravation of right ankle arthritis, primary osteoarthritis of the ankles and feet,
fracture of the right calcaneus, traumatic arthropathy of the right ankle and foot, internal
derangement of the left knee, malunion of a fracture on the left and bilateral lower leg
osteoarthritis. Dr. Al-Shaikh performed a fluoroscopic evaluation of the right ankle osteotomy
site on December 22, 2010. This test was normal. However, Dr. Al-Shaikh also noted that
appellant had localized pain to the right calcaneocuboid joint which was significant with
inversion and eversion. He recommended a right calcaneocuboid joint fusion and provided
appellant with orthotics.
In a note dated January 17, 2011, Dr. Al-Shaikh stated that he examined appellant on
December 22, 2010 as a follow-up to the right ankle osteotomy. He stated that appellant
required a right calcaneocuboid joint fusion due to significant pain resulting from inversion and
eversion of this joint. Dr. Al-Shaikh stated this condition resulted in his decision to remove
appellant from work to allow him time to recover from pain and to temporarily avoid excessive
walking and standing.
The Board finds that appellant has submitted medical evidence specifically addressing
the period of disability claimed. Appellant requested six hours of sick leave on December 22,
201013 and 10 hours on December 23, 2010. He is entitled to compensation for any time he
missed for work due to medical treatment resulting from his accepted employment injuries.
OWCP’s procedure manual provides that claimants are entitled up to four hours of compensation
due to routine medical appointments.14 Furthermore, Dr. Al-Shaikh examined appellant on
December 22, 2010 and found that the right ankle calcaneocuboid joint required fusion due to the
significant pain appellant experienced with inversion and eversion. The Board finds that the
medical evidence consisting of Dr. Al-Shaikh’s determination on December 22, 2010 that
appellant required additional surgery to his right ankle, an accepted condition; the fact that he
underwent this surgery on March 18, 2011; as well as Dr. Al-Shaikh’s January 17, 2011
statement that he removed appellant from work on December 22, 2010 to allow him time to
recover from pain and to avoid excessive walking and standing are sufficiently detailed and
13

The Board notes that appellant worked four shifts of 10 hours each during a regular workweek.

14

Federal (FECA) Procedure Manual, Part 3 -- Medical, Administrative Matters, Chapter 3.900.8
(November 1998).

7

contemporaneous to establish his temporary total disability on December 22 and 23, 2010 due to
his accepted right ankle condition.
The Board finds that the medical evidence is sufficient to establish appellant’s
entitlement to compensation on December 22 and 23, 2010 due to his accepted right ankle
condition for which appellant previously underwent two surgeries accepted by OWCP. On
remand, OWCP will undertake the necessary development of the factual evidence to authorize
compensation benefits for these dates.
CONCLUSION
The Board finds that appellant did not submit sufficient medical opinion evidence to
establish that he was totally disabled for intermittent periods from July 30 through
December 4, 2008. The Board further finds that he has established entitlement to compensation
benefits on December 22 and 23, 2010.
ORDER
IT IS HEREBY ORDERED THAT the June 6, 2011 decision of the Office of Workers’
Compensation Programs is affirmed. The February 14, 2011 decision is set aside and the case
remanded for further development consistent with this opinion of the Board.
Issued: August 13, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Rochester, NY, Employer
__________________________________________

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

Docket No. 10-827
Issued: March 4, 2011

Case Submitted on the Record

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

JURISDICTION
On February 3, 2010 appellant filed a timely appeal of an October 1, 2009 decision of the
Office of Workers’ Compensation Programs, finding that appellant’s request for reconsideration
was untimely and failed to show clear evidence of error. Pursuant to 20 C.F.R. § 501.3, the
Board has jurisdiction over the February 2, 2009 decision. The Board does not have jurisdiction
over a decision on the merits of the claim.1
ISSUE
The issue is whether the Office properly found appellant’s application for reconsideration
was untimely and failed to show clear evidence of error.

1

The last merit decision was an Office decision dated March 21, 2006. The Board has jurisdiction over final
decisions of the Office. See 20 C.F.R. § 501.2(c). For Office decisions issued prior to November 19, 2008, a
claimant had one year to file an appeal. An appeal of Office decisions issued on or after November 19, 2008 must
be filed within 180 days of the decision. 20 C.F.R. § 501.3(e).

FACTUAL HISTORY
The case was before the Board on prior appeals. By decision dated July 12, 2001, the
Board affirmed an August 20, 1998 wage-earning capacity determination based on the selected
position of automobile salesperson.2 In a decision dated May 31, 2007, the Board affirmed a
July 12, 2006 Office decision, finding that appellant’s reconsideration request was insufficient to
warrant merit review of the claim.3 The history of the case is contained in the Board’s prior
decision and is incorporated herein by reference.
Following the Board’s May 31, 2007 decision, the Office issued decisions dated July 6
and September 4, 2007, denying merit review of the claim. In a decision dated May 19, 2009, it
found that appellant’s May 3, 2009 application for reconsideration was untimely and failed to
show clear evidence of error.
On August 4, 2009 appellant filed a July 28, 2009 request for reconsideration. He argued
that the medical evidence had not been properly considered by the Office. Appellant stated that
a September 14, 2006 report from Dr. Clancey McKenzie, a psychiatrist, had not been properly
reviewed. He argued that an August 12, 1992 report from Dr. Lynn Storie established that “fear”
was a direct and natural consequence of the employment injury.4 Appellant submitted a copy of
the September 14, 2006 report from Dr. McKenzie, who stated that the job of car salesman
required “work outside in the elements” and would not be an appropriate position because
working outside had caused the worsening of his arthritic conditions. Dr. McKenzie further
stated that appellant had post-traumatic stress disorder (PTSD) and could not work with the
general public in a sales position. He concluded that appellant was totally disabled at that time.
In a decision dated October 1, 2009, the Office found that appellant’s application for
reconsideration was untimely filed. It further found that he had not established clear evidence of
error and was not entitled to a merit review.
LEGAL PRECEDENT
It is well established that either a claimant or the Office may seek to modify a formal loss
of wage-earning capacity determination. Once the wage-earning capacity of an injured
employee is determined pursuant to 5 U.S.C. § 8115, a modification of such determination is not
warranted unless there is a material change in the nature and extent of the injury-related
condition, the employee has been retrained or otherwise vocationally rehabilitated, or the original
determination was, in fact, erroneous.5 The burden of proof is on the party attempting to show a

2

Docket No. 99-1799 (issued July 12, 2001).

3

Docket No. 06-1928 (issued May 31, 2007).

4

The accepted conditions in the case were bilateral mild distal peripheral neuropathy and left mild sensory ulnar
neuropathy.
5

Sue A. Sedgwick, 45 ECAB 211 (1993).

2

modification of the wage-earning capacity determination.6 There is no time limit for a claimant
to submit a request for modification of a wage-earning capacity determination.7
ANALYSIS
The October 1, 2009 Office decision found that appellant had submitted an application
for reconsideration of a wage-earning capacity determination, and that such application was
untimely and failed to show clear evidence of error. Although appellant’s July 28, 2009 letter
used the term reconsideration, he argued that the wage-earning capacity determination was
erroneous as the Office did not properly consider the medical evidence.
The July 28, 2009 letter constitutes a request for modification of the wage-earning
capacity determination. Appellant argued that the original determination was in error, as well as
discussing new medical evidence regarding his condition. The Board finds that the July 28, 2009
letter was improperly characterized as an application for reconsideration. It is a request for
modification of a wage-earning capacity determination, and therefore the Office should have
issued an appropriate merit decision on the issue.8 The case will be remanded to the Office for
an appropriate decision with respect to modification of the wage-earning capacity determination.
CONCLUSION
The Board finds that appellant requested modification of the August 20, 1998 wageearning capacity determination and the case is remanded for an appropriate decision on that
issue.

6

Id.

7

Gary W. Moreland, 54 ECAB 638 (2003).

8

See W.W., 61 ECAB ___ (Docket No. 09-1934, issued February 24, 2010) (claimant used the term
reconsideration, but argued the wage-earning capacity determination was in error. The case was remanded for an
appropriate decision on the issue of modification of the wage-earning capacity determination).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 1, 2009 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: March 4, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New York, NY, Employer
__________________________________________

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

Docket No. 11-928
Issued: December 1, 2011

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 March 3, 2011 appellant filed a timely appeal from the January 13, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which terminated her
compensation for wage loss. Pursuant to the Federal Employees’ Compensation Act (FECA)1
and 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 OWCP properly terminated appellant’s compensation for wage loss.
FACTUAL HISTORY
On or about November 8, 1999 appellant, a 53-year-old mail handler, filed a claim
alleging that she sustained an injury from 10 years of heavy pulling, pushing and lifting in the
course of her federal employment. OWCP accepted her claim for a herniated cervical disc and
right lateral epicondylitis. Following her injury, appellant worked limited duty.
1

5 U.S.C. § 8101 et seq.

On November 10, 2010 OWCP accepted that appellant sustained a recurrence of
disability on July 19, 2010 causally related to her 1999 work injury. It paid compensation for
temporary total disability.
Dr. Laxmidhar Diwan, the attending Board-certified orthopedic surgeon, examined
appellant on August 25, 2010. He related her history and complaints and described his findings
on physical examination. There was a loss of cervical lordosis as well as midcervical and
paracervical tenderness. Range of motion was limited to no more than 25 degrees in any plane.
Dr. Diwan diagnosed rule out herniated disc involving C5-6 and C6-7 with right radiculopathy.
Dr. Diwan reviewed his examinations and treatment of appellant. He found that her neck
condition was static and she had achieved maximum medical improvement and would stay
symptomatic, which would interfere with her work and activities of daily living. Dr. Diwan
added that appellant continued to have severe symptoms of right carpal tunnel syndrome causing
tingling, numbness, hypesthesia, an inability to hold heavy objects and an inability to sleep due
to constant pain. He found that this condition had also stabilized and would not improve.
On September 22, 2010 Dr. Diwan noted that appellant continued to complain of pain in
the cervical spine. Appellant had difficulty turning her head in any direction and also had
difficulty driving, as her motion was limited. Her neck felt stiff, and she had difficulty sleeping
at night due to stiffness and pain in her neck. Appellant also complained of pain and limited
motion in her right elbow. Dr. Diwan again found loss of cervical lordosis, midcervical and
paracervical tenderness and limited motion. Motion had improved only slightly to 30 degrees in
three of four planes but was still significantly limited. Dr. Diwan found tenderness over the right
medial and lateral epicondyle with swelling at the back of the elbow. Ranges of motion were
slightly restricted. Dr. Diwan diagnosed cervical spondylosis and tendinitis and synovitis of the
right elbow.
When it accepted appellant’s recurrence claim, OWCP asked Dr. Diwan to compete a
work capacity evaluation. Dr. Diwan did so on November 16, 2010, finding appellant totally
disabled from her usual job. He indicated, however, that she could work 8 hours a day with
restrictions: intermittent walking; no standing more than 30 minutes; intermittent reaching; no
reaching above the shoulder; no twisting, bending/stooping or operating a motor vehicle;
intermittent repetitive movement of the wrists and elbows; no pushing, pulling or lifting more
than five pounds; no squatting, kneeling or climbing; and no working 8 hours in a sitting position
in a chair without a back support. Dr. Diwan again found that appellant had reached maximum
medical improvement.
On December 20, 2010 Dr. Robert J. Orlandi, a Board-certified orthopedic surgeon and
OWCP referral physician, reviewed appellant’s “injuries” and complaints. He found no loss of
cervical lordosis and normal range of motion, but for a slight loss of cervical extension to 40
degrees. Dr. Orlandi’s examination of the cervical spine was otherwise normal in all respects.
Examination of the right elbow was also normal except for a 1+ tenderness over the lateral
epicondyle, which was not associated with soft-tissue swelling and which was not worsened by
resisted digital extension. Examination of the right wrist and hand was normal.

2

Dr. Orlandi reviewed the medical record, including Dr. Diwan’s August 25, 2010
findings of a 50 percent reduction in cervical motion leading to marked disability. He diagnosed
cervical strain, resolved but superimposed on age-related cervical spondylosis, and minimal and
nondisabling subjective right lateral epicondylitis. Dr. Orlandi concluded that appellant could
work without restriction: “There is no musculoskeletal disability.”
In a decision dated January 13, 2011, OWCP terminated appellant’s compensation for
wage loss. It found that Dr. Orlandi’s opinion represented the weight of the medical evidence
and established that appellant had no current disability for work as a result of her November 8,
1999 occupational injury or July 19, 2010 recurrence. Addressing only the accepted right lateral
epicondylitis, OWCP noted that Dr. Diwan found no deformity, only tenderness, which was a
subjective finding not reported by Dr. Orlandi. Further, Dr. Diwan did not support his diagnosis
of tendinitis and synovitis of the right elbow with diagnostic testing. OWCP concluded that
Dr. Diwan’s reports did not support the need for further restrictions or continued disability. It
found that Dr. Orlandi’s opinion was unequivocal and supported by his findings on examination
and by sufficient medical rationale.
On appeal, appellant notes the disagreement between her doctor and OWCP’s doctor on
whether her accepted injuries have resolved and whether her pain and symptoms are residual to
those injuries.
LEGAL PRECEDENT
The United States shall pay compensation for the disability of an employee resulting
from personal injury sustained while in the performance of duty.2 Once OWCP accepts a claim,
it has the burden of proof to justify termination or modification of compensation benefits.3 After
it has determined that an employee has disability causally related to federal employment, OWCP
may not terminate compensation without establishing that the disability has ceased or that it is no
longer related to the employment.4
If there is disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall
make an examination.5
ANALYSIS
OWCP accepted that appellant sustained a recurrence of disability on July 19, 2010
causally related to her 1999 work injury. It therefore has the burden of proof to justify the
termination of compensation for temporary total disability.
2

5 U.S.C. § 8102(a).

3

Harold S. McGough, 36 ECAB 332 (1984).

4

Vivien L. Minor, 37 ECAB 541 (1986); David Lee Dawley, 30 ECAB 530 (1979); Anna M. Blaine, 26 ECAB
351 (1975).
5

5 U.S.C. § 8123(a).

3

OWCP found that Dr. Orlandi’s opinion represented the weight of the medical evidence.
The Board, however, finds that Dr. Diwan’s opinion is just as probative. Dr. Diwan was the
attending physician. He had examined and treated appellant for several years. In August and
September 2010, Dr. Diwan reported significant findings on physical examination. He found
that appellant had reached maximum medical improvement and would remain symptomatic, thus
interfering with her work. In November 2010, consistent with his findings, Dr. Diwan imposed
significant work restrictions. He indicated that appellant could not return to her date-of-injury
job. Only one month later, Dr. Orlandi reported an almost entirely normal examination. He saw
no musculoskeletal disability. Dr. Orlandi found that appellant could return to her date-of-injury
job.
Pursuant to 5 U.S.C. § 8123(a), there is disagreement between the physician making the
examination for the United States and the physician of the employee. Dr. Orlandi’s findings on
examination of the cervical spine are remarkably different from those of Dr. Diwan. Considering
Dr. Diwan’s opinion that appellant had achieved maximum medical improvement and would
stay symptomatic, Dr. Orlandi’s findings raise a question as to whether appellant could have
recovered so quickly. Dr. Orlandi acknowledged Dr. Diwan’s August 2010 findings of a greater
than 50 percent reduction in cervical motion that would lead to marked disability, but he did not
attempt to reconcile those findings with his lack of findings in December 2010. He did not
mention Dr. Diwan’s findings in September 2010 or his work restriction evaluation in
November 2010. Dr. Orlandi did not discuss the accepted herniated cervical disc. Indeed,
OWCP did not address the accepted herniated cervical disc when it terminated appellant’s
compensation for wage loss. It appeared to terminate compensation for wage loss because
Dr. Orlandi considered appellant’s right elbow condition to be minimal and nondisabling. This
was not sufficient.
Because a conflict existed between Dr. Diwan and Dr. Orlandi on the issue of disability
for work, further development of the medical evidence was warranted. OWCP should have
referred appellant to an impartial medical specialist. Without a resolution of the conflict, the
Board finds that OWCP did not meet its burden of proof to justify the termination of appellant’s
compensation for wage loss. The Board will reverse OWCP’s January 13, 2011 decision and
remand the case for payment of appropriate compensation.
CONCLUSION
The Board finds that OWCP improperly terminated appellant’s compensation for wage
loss. A conflict in medical opinion warrants referral to an impartial medical specialist under
5 U.S.C. § 8123(a).

4

ORDER
IT IS HEREBY ORDERED THAT the January 13, 2011 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: December 1, 2011
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

5


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

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

Docket No. 08-475
Issued: June 10, 2008

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 December 6, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ October 23, 2007 merit decision concerning her entitlement to
schedule award compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she is entitled to a
schedule award for permanent impairment of her right leg or to establish that she has more than a
37 percent permanent impairment of her left leg, for which she received a schedule award.
FACTUAL HISTORY
The Office accepted that on September 8, 1987 appellant, then a 49-year-old nursing
assistant, sustained bilateral knee strains due to twisting her knees while stepping off a curb. It
authorized a left partial lateral meniscectomy which was performed on November 30, 1993 and a

repeat left partial lateral meniscectomy with chondroplasty which was performed on
April 22, 1996.
On June 25, 1998 Dr. Fred M. Ruefer, an attending Board-certified orthopedic surgeon,
performed total left knee replacement surgery. The procedure was authorized by the Office. On
May 11, 1999 Dr. Ruefer indicated that appellant’s total left knee replacement warranted a 37
percent permanent impairment rating for her left leg under the relevant standards of the fourth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (4th ed. 1993). In an August 13, 1999 decision, the Office granted appellant a
schedule award for a 37 percent permanent impairment of her left leg. The award ran for 106.56
weeks from January 20, 1999 to February 3, 2001.
In a September 14, 2005 report, Dr. Ruefer indicated that appellant came in complaining
of right knee pain, with an insidious onset, that gradually got worse. He noted that appellant had
good range of motion of the right knee (from 0 to 130 degrees) with significant crepitus, 1+
effusion and 2+ anterior instability secondary to anterior cruciate deficit. Appellant had a valgus
deformity of the right knee, but that sensation and motor function were intact.1 Dr. Ruefer
diagnosed severe osteoarthritis of the right knee. In another September 14, 2005 report, he stated
that appellant did not yet require a total knee replacement on the right.
In an undated form report received by the Office on July 20, 2007, Dr. Ruefer indicated
he performed a right total knee replacement on appellant.2 In a June 19, 2007 report, he stated
that appellant was concerned that her right knee still hurt and noted that “it still should as it really
has not been that long since surgery.” Dr. Ruefer indicated that appellant’s right knee had range
of motion from 0 to 95 degrees and her surgical incision had healed nicely. He noted that right
knee pain was decreasing, that there was no instability with normal patellar tracking, and that the
neurovascular and integumental aspects of the right knee were intact. Dr. Ruefer diagnosed
“well-functioning total knee on the right hand side” and stated, “In my medical opinion, based
upon reasonable degree of medical certainty and in accordance with the fifth edition of the
[A.M.A., Guides], this patient has sustained 15 percent permanent … impairment to the knee.”
On July 9, 2007 appellant filed a claim for a schedule award. In a July 30, 2007 letter,
the Office asked Dr. Ruefer to indicate whether appellant had reached maximum medical
improvement and to provide a rating for lower extremity permanent impairment according to the
standards of the A.M.A., Guides.3
In an October 23, 2007 decision, the Office denied appellant’s schedule award claim
indicating that she did not meet her burden of proof to establish that she is entitled to a schedule
award for permanent impairment of her right leg or to establish that she has more than a 37
percent permanent impairment of her left leg, for which she received a schedule award. The
1

Dr. Ruefer noted that appellant had range of motion from 0 to 130 degrees in her left knee with no instability.

2

Dr. Ruefer did not specify the date of the surgery but he noted that appellant was admitted to the hospital on
December 8, 2006.
3

A copy of the July 30, 2007 letter was also sent to appellant’s current mailing address.

2

Office indicated that the June 19, 2007 report of Dr. Ruefer was not sufficient to support a
finding that appellant was entitled to additional schedule award compensation.4
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act5 and its
implementing regulations6 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.7 A
determination on permanent impairment should not be made until maximum medical
improvement has been reached for a given scheduled member, i.e., the physical condition of the
member has stabilized despite the possibility of an eventual change in the degree of functional
impairment in the member.8
ANALYSIS
The Office accepted that on September 8, 1987 appellant sustained bilateral knee strains
due to twisting her knees while stepping off a curb. It authorized several surgical procedures
including a total left knee replacement performed on June 25, 1998 by Dr. Ruefer, an attending
Board-certified orthopedic surgeon. On August 13, 1999 the Office granted appellant a schedule
award for a 37 percent permanent impairment of her left leg. Appellant claimed entitlement to
additional schedule award compensation and, in an October 23, 2007 decision, the Office denied
appellant’s schedule award claim indicating that she did not meet her burden of proof to establish
that she is entitled to a schedule award for permanent impairment of her right leg or to establish
that she has more than a 37 percent permanent impairment of her left leg, for which she received
a schedule award.
The Board finds that appellant has not submitted sufficient medical evidence to establish
entitlement to additional schedule award compensation. Appellant submitted a June 19, 2007
report in which Dr. Ruefer concluded, “In my medical opinion, based upon reasonable degree of
medical certainty and in accordance with the fifth edition of the [A.M.A., Guides], this patient
has sustained 15 percent permanent … impairment to the knee.”9 However, this report is of
4

It does not appear that Dr. Ruefer responded to the Office’s request for additional information.

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404 (1999).

7

Id.

8

See Tonya D. Bell, 43 ECAB 845, 847 (1992).

9

Dr. Ruefer indicated that appellant’s right knee had range of motion from 0 to 95 degrees and her surgical
incision had healed nicely. He noted that right knee pain was decreasing, that there was no instability with normal
patellar tracking and that the neurovascular and integumental aspects of the right knee were intact.

3

limited probative value on the relevant issue of the present case for two reasons. First,
Dr. Ruefer did not provide a clear opinion that appellant’s right knee had reached maximum
medical improvement.10 It appears that appellant had undergone total left knee replacement
surgery several months prior, although the precise date of the surgery is unclear. As noted
above, determination on permanent impairment should not be made until maximum medical
improvement has been reached for a given scheduled member, i.e., the physical condition of the
member has stabilized despite the possibility of an eventual change in the degree of functional
impairment in the member.11 Second, Dr. Ruefer did explain how his conclusion that appellant
had a 15 percent permanent impairment of her right leg comported with the standards of the
A.M.A., Guides. There are specific tests and evaluation techniques in the A.M.A., Guides for
assessing permanent impairment of the lower extremities, but Dr. Ruefer did not explain how
such standards would be applied in appellant’s case.12
The opinion of Dr. Ruefer is of limited probative value regarding appellant’s right leg
impairment in that Dr. Ruefer failed to provide an explanation of how his assessment of
permanent impairment was derived in accordance with the standards adopted by the Office and
approved by the Board as appropriate for evaluating schedule losses.13 Appellant did not submit
any other relevant medical evidence and the Office properly denied her claim for a right leg
schedule award. She did not submit any medical evidence containing an impairment rating for
her left leg and therefore the Office properly found that there was no basis to find that she has
more than a 37 percent permanent impairment of her left leg, for which she received a schedule
award.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she is
entitled to a schedule award for permanent impairment of her right leg or to establish that she has
more than a 37 percent permanent impairment of her left leg, for which she received a schedule
award.

10

Dr. Ruefer stated that appellant was concerned that her right knee still hurt and noted that “it still should as it
really has not been that long since surgery.”
11

See supra note 8 and accompanying text. Dr. Ruefer did not respond to the Office’s request for additional
information regarding the matter of maximum medical improvement.
12

See A.M.A., Guides 523-64, Chapter 17.

13

See James Kennedy, Jr., 40 ECAB 620, 626 (1989) (finding that an opinion which is not based upon the
standards adopted by the Office and approved by the Board as appropriate for evaluating schedule losses is of little
probative value in determining the extent of a claimant’s permanent impairment).

4

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
October 23, 2007 decision is affirmed.
Issued: June 10, 2008
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.T., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Flint, MI, Employer
__________________________________________

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

Docket No. 11-269
Issued: September 20, 2011

Case Submitted on the Record

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

JURISDICTION
On November 10, 2010 appellant filed an appeal from a May 13, 2010 merit decision of
the Office of Workers’ Compensation Programs (OWCP)). Pursuant to the Federal Employees’
Compensation Act (FECA)1 and 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 an emotional condition causally related to
compensable work factors.
FACTUAL HISTORY
On April 28, 2009 appellant, then a 51-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that she sustained acute stress disorder as a result of her
federal employment. In a statement of April 30, 2009, appellant noted that she had witnessed an
1

5 U.S.C. § 8101 et seq.

incident between two employees at the end of June 2008, and since that time she had received
intimidating stares from another employee.
Appellant stated that management was
unprofessional, citing a September 2, 2008 meeting where Joe Babcock, a supervisor, stated that
he did not expect employees “to swap spit and make babies together, we just have to get the job
done.” According to her, Mr. Babcock also referred to an unidentified employee at another
employing establishment work site as a “moron,” and appellant’s husband worked at that site.
Appellant referred to a November 1, 2008 incident where the supervisor placed his hand on her
back and she told him to stop touching her. On December 1, 2008 she had a disagreement with
the supervisor regarding the use of leave, and the supervisor told her she worked at the pace of a
“three[-]legged sloth.” On January 13, 2009 the supervisor told appellant she had lost so much
weight that she would have to “run around the shower twice just to get wet.” Appellant alleged
that the supervisor brushed up against her on February 18, 2009 and told her she did not have to
finger each piece of mail.
The record contains additional statements from appellant regarding her claim. On
May 15, 2009 appellant alleged that the supervisor had sexually harassed and intimidated her,
and allowed a hostile work environment to develop. On September 2, 2008 she told the
supervisor not to touch or wink at her. With respect to the December 1, 2008 incident, appellant
stated the supervisor referred to her as a “little lady” in a demeaning tone. She stated that, while
the supervisor had disciplined an employee for whistling a television theme song, he whistled a
song from The Bridge on the River Kwai movie on two occasions. In May 2009, appellant
requested time to complete Equal Employment Opportunity (EEO) paperwork, but was told she
had to use the lunch room, which was retaliation. On June 23, 2009 she stated that since
August 2008 the supervisor would sometimes wink at her when he passed by and initiate
conversations when no one else was around.
Appellant submitted statements for coworkers in support of her claim. A Mr. Beardslee
submitted a May 22, 2009 statement that he felt there was a hostile work environment. He did
not discuss any specific incidents involving appellant. A Mr. Blumberg stated the work
environment had steadily declined over the past several years in a June 14, 2009 statement.
Ms. Hogard stated that management was promoting disharmony and discord. She discussed
incidents at work and repeated appellant’s allegations, although she did not state whether she had
personally witnessed any incidents involving appellant.
The employing establishment responded with statements from a supervisor,
Ms. Kurdziel, regarding an investigation into appellant’s allegations. On February 27, 2009
Ms. Kurdziel interviewed Mr. Babcock. With respect to the alleged “moron” statement,
Mr. Babcock asserted that he did not use the term at the service meeting, and it was appellant
who later told him that her husband was not the “moron who left the mail.” According to
Mr. Babcock, he did not recall even touching appellant or winking at her, nor did she ever talk to
him about such behavior. He acknowledged saying appellant was as slow as a three-legged
sloth, and her performance improved after the comment. Mr. Babcock stated that he never
commented on appellant’s weight loss. As to February 18, 2009, the supervisor stated that he
did not brush up against appellant, that staff was shorthanded that day and appellant was a slow
worker who generated many complaints among her coworkers.

2

The record contains a March 5, 2009 statement from Ms. Kurdziel regarding the
employee who allegedly looked at appellant in an intimidating manner. The coworker stated that
she had never made an effort to glare at appellant or intimidate her and was surprised by the
accusation.
By decision dated November 3, 2009, OWCP denied the claim for compensation. OWCP
found that no compensable work factors had been established.
Appellant requested a hearing before an OWCP hearing representative, which was held
on March 24, 2010. She submitted a transcript of testimony by a former coworker, Ms Moreton,
pursuant to an EEO action. Ms. Moreton testified that there several coworkers who had
complained about Mr. Babcock, stating they did not like working for him and he intimidated
them.
By decision dated May 13, 2010, OWCP’s hearing representative affirmed the
November 3, 2009 decision. The hearing representative found no compensable work factors had
been established.
LEGAL PRECEDENT
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or adversely
affected by factors of her federal employment.2 This burden includes the submission of detailed
description of the employment factors or conditions which she believes caused or adversely
affected the condition or conditions for which compensation is claimed.3 A claimant must also
submit rationalized medical opinion evidence establishing a causal relationship between the
claimed condition and the established, compensable work factors.4
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness has
some connection with the employment but nevertheless does not come within the coverage of
workers’ compensation. These injuries occur in the course of the employment and have some kind
of causal connection with it but nevertheless are not covered because they are found not to have
arisen out of the employment. Disability is not covered where it results from an employee’s
frustration over not being permitted to work in a particular environment or to hold a particular
position, or secure a promotion. On the other hand, where disability results from an employee’s
emotional reaction to his regular or specially assigned work duties or to a requirement imposed by
the employment, the disability comes within the coverage of FECA.5

2

Pamela R. Rice, 38 ECAB 838 (1987).

3

Roger Williams, 52 ECAB 468 (2001); Anna C. Leanza, 48 ECAB 115 (1996).

4

See Bonnie Goodman, 50 ECAB 139, 141 (1998).

5

Lillian Cutler, 28 ECAB 125 (1976).

3

In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors causing a condition or disability, OWCP, as part of its adjudicatory function,
must make findings of fact regarding which working conditions are deemed compensable factors
of employment and are to be considered by a physician when providing an opinion on causal
relationship and which working conditions are not deemed factors of employment and may not be
considered.6 If a claimant does implicate a factor of employment, OWCP should then determine
whether the evidence of record substantiates that factor. When the matter asserted is a
compensable factor of employment and the evidence of record establishes the truth of the matter
asserted, OWCP must base its decision on an analysis of the medical evidence.7
A reaction to an administrative or personnel matter is generally not covered as it is not
related to the performance of regular or specially assigned duties.8 Nevertheless, if the evidence
demonstrates that the employing establishment erred, acted abusively or unreasonably in the
administration of a personnel matter, any physical or emotional condition arising in reaction to
such error or abuse may be covered.9
ANALYSIS
In the present case, appellant has not alleged that the performance of her regular or
specially assigned employment duties was a cause of her emotional condition. Rather, she
alleged a stress-related condition as result of actions by her supervisor. The initial question is
whether appellant established a compensable work factor with respect to her claim for
compensation.
Appellant alleged that she was subject to sexual harassment and a hostile work
environment. She pursued a claim before the EEO Commission, but the record does not contain
any findings with respect to a claim for sexual harassment.10 Appellant’s allegations before
OWCP regarding sexual harassment were that the supervisor placed his hand on her back,
brushed up against her, winked at her at times and made a comment about her weight loss. The
supervisor denied the allegations of touching, winking or commenting on weight loss. There are
no statements by any witness that observed the alleged behavior, or any other evidence to
support a finding that sexual harassment occurred.11 The Board finds that the evidence of record
is not sufficient to substantiate a compensable work factor based on sexual harassment.

6

See Norma L. Blank, 43 ECAB 389-90 (1992).

7

Id.

8

See Brian H. Derrick, 51 ECAB 417, 421 (2000).

9

Margreate Lublin, 44 ECAB 945, 956 (1993).

10

It is not necessary to establish a claim of harassment before the EEO Commission, although findings made
pursuant to such a claim may be relevant to the compensation issues presented. Martha L. Cook, 47 ECAB 226, 231
(1995)
11

Compare K.M., Docket No. 10-1139 (issued April 25, 2011) (where there were allegations of overtly sexual
contact, evidence as to messages left by the alleged harasser, and lack of an adequate investigation by the employing
establishment).

4

With respect to specific statements, the record does establish, and OWCP acknowledged,
that the supervisor made a comment regarding appellant’s work pace as a “three[-]legged sloth.”
In addition, the supervisor stated at a September 2, 2008 meeting that employees did not have to
“swap spit and make babies together.” It is well established that a compensable factor may be
substantiated based on verbal abuse.12 This does not mean, however, that every statement that is
uttered in the workplace is sufficient to give rise to a compensable work factor.13 While
appellant may been offended by the remarks, the statements do not rise to the level of verbal
abuse, even if they may be considered offensive or unprofessional.14 There was also an
allegation that the supervisor whistled a tune from a movie, but again this would not itself rise to
the level of abusive behavior.
The Board finds the evidence of record does not substantiate a compensable work factor
based on a claim of sexual harassment, harassment or verbal abuse. In addition, the Board finds
no probative evidence regarding any other compensable work factors. Appellant noted a dispute
regarding leave, but such matters are administrative actions of the employer and the evidence
must show error or abuse.15 There is no probative evidence or error or abuse with respect to an
administrative matter in this case.
Since appellant has not established a compensable work factor, the Board will not address
the medical evidence.16 She may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds appellant has not established an emotional condition causally related to
compensable work factors.

12

David W. Shirey, 42 ECAB 783 (1991).

13

David C. Lindsey, Jr., 56 ECAB 263 (2005).

14

See K.C., Docket No. 10-709 (issued April 18, 2011).

15

Lori A. Facey, 55 ECAB 217 (2004).

16

See Margaret S. Krzycki, 43 ECAB 496 (1992).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 13, 2010 is affirmed.
Issued: September 20, 2011
Washington, DC

Alec J. Koromilas, 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
__________________________________________
L.L., Appellant
and
DEPARTMENT OF AGRICULTURE,
VETERINARY SERVICES, Wilmar, MN,
Employer
__________________________________________

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

Docket No. 19-1690
Issued: February 25, 2020

Case Submitted on the Record

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

JURISDICTION
On August 7, 2019 appellant filed a timely appeal from a July 29, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $3,378.81 for the period February 10 through
March 4, 2017; and (2) whether OWCP properly determined that appellant was at fault in the
creation of the $3,378.81 overpayment and, therefore, precluded from waiver of recovery of the
overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on May 3, 2015 appellant, then a 61-year-old veterinary medical
officer, sustained: recent partial retinal detachment with single defect, left; other complications
affecting other specified body systems, not elsewhere classified, left; retained (old) intraocular
foreign body nonmagnetic, unspecified, left; and unspecified complication of corneal transplant
vitreous degeneration, left eye when he hit his head on a post in a barn as he tried to grab chickens
to test for backyard surveillance while in the performance of duty. Appellant underwent authorized
left eye surgery on August 26, 2015.
On February 1, 2016 appellant filed a claim for a schedule award (Form CA-7).
By decision dated September 21, 2016, OWCP granted appellant a schedule award for 25
percent permanent impairment of the left eye. The award ran for a period of 40 weeks from May 6,
2016 to February 9, 2017. Appellant’s weekly pay was computed at $1,024.77 based on the 66 2/3
percent augmented rate for employees with no dependents, totaling $4,099.09 in continuing
payments every four weeks.
In a printout from the Automated Compensation Payment System (ACPS), OWCP
documented that it paid appellant an additional sum of $3,378.81 for the period February 10
through March 4, 2017 as appellant’s schedule award compensation should have terminated on
February 9, 2017. Copies of fiscal worksheets were provided.
In a preliminary determination dated January 16, 2019, OWCP notified appellant that he
had received an overpayment of compensation in the amount of $3,378.81 for the period
February 10 through March 4, 2017 because he was overpaid for his schedule award. It explained
that he received $3,378.81 in error during the stated period because his schedule award expired on
February 9, 2017. OWCP advised that appellant was at fault in the creation of the overpayment
because he accepted a payment that he knew or reasonably should have known was incorrect. It
informed him of his review rights and instructed him to complete an enclosed overpayment
recovery questionnaire (Form OWCP-20) and submit supporting documentation within 30 days.
Appellant, in a January 23, 2019 overpayment action request, requested a prerecoupment
hearing before an OWCP hearing representative, contesting the finding of fault and requesting
waiver of recovery of the overpayment. He argued that he was not at fault in the creation of the
overpayment because the total amount of his schedule award payments was not listed or made
known to him in the September 21, 2016 schedule award decision and the funds were electronically
deposited into his bank account and he had no knowledge of the transaction until the money
appeared.
In an accompanying Form OWCP-20 dated January 23, 2019, appellant indicated that he
had no monthly income since being furloughed on December 22, 2018. He also reported that he
had no monthly expenses. Appellant had $300.00 in funds.
A telephonic hearing was held before an OWCP hearing representative on May 13, 2019.
During the hearing, appellant acknowledged that he had received an overpayment of

2

compensation, but argued that the overpayment occurred through no fault of his own because he
did not realize it had occurred at the time he received schedule award payments.
Following the hearing, OWCP received a completed Form OWCP-20 dated June 5, 2019.
Appellant noted total monthly income of $4,844.08, monthly expenses of $4,656.50, and
$2,133.00 in funds. He submitted a divorce decree and supporting financial documentation.
By decision dated July 29, 2019, an OWCP hearing representative finalized the preliminary
overpayment determination, finding that appellant was overpaid in the amount of $3,378.81 for
the period February 10 through March 4, 2017 because he received continued schedule award
compensation after his schedule award had expired on February 9, 2017. She found that he was
at fault in the creation of the overpayment as he knew or should have known that the payments
were incorrect and that he was, therefore, not entitled to waiver of recovery of the overpayment.
The hearing representative evaluated appellant’s income and expenses and found that he had
$972.48 available in monthly discretionary income. She set recovery of the overpayment at the
rate of $500.00 per month.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA2 and its implementing regulations3 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. Section 20 C.F.R. § 10.404
provides that compensation is provided for specified periods of time for the permanent loss or loss
of use of certain members.4
OWCP’s procedures provide that an overpayment is created when a schedule award
expires, but compensation continues to be paid.5
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $3,378.81 for the period February 10 through March 4, 2017.
OWCP granted appellant a schedule award for 25 percent permanent impairment of the left
eye on September 21, 2016 for the period May 6, 2016 through February 9, 2017. The evidence
of record establishes that OWCP continued to pay his schedule award compensation after
February 9, 2017, the date the award expired. Consequently, the $3,378.81 payment received for
the period February 10 through March 4, 2017 constituted an overpayment of compensation.
2

Id.

3

20 C.F.R. § 10.404.

4

Id. Effective May 1, 2009 OWCP began using the American Medical Association, Guides to the Evaluation of
Permanent Impairment (6th ed. 2009). See E.V., Docket No. 17-2026 (issued July 11, 2018).
5
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.2(c)
(May 2004).

3

Appellant has not contested this amount.6 The Board accordingly affirms the fact and amount of
the overpayment.7
LEGAL PRECEDENT -- ISSUE 2
5 U.S.C. § 8129(b) provides: “Adjustment or recovery by the United States may not be
made when incorrect payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of FECA or would be against equity and good
conscience.”8 A claimant who is at fault in the creation of the overpayment is not entitled to
waiver.9 On the issue of fault, 20 C.F.R. § 10.433(a) provides that an individual will be found at
fault if he or she has done any of the following: (1) made an incorrect statement as to a material
fact which he or she knew or should have known to be incorrect; (2) failed to provide information
which he or she knew or should have known to be material; or (3) accepted a payment which he
or she knew or should have known was incorrect.10
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.11
ANALYSIS -- ISSUE 2
The Board finds that OWCP improperly determined that appellant was at fault in the
creation of the $3,378.81 overpayment and, therefore, precluded from waiver of recovery of the
overpayment.
In Tammy Craven,12 the Board explained that an employee who receives payment from
OWCP in the form of a direct deposit may not be at fault for the first incorrect deposit into his or
her account since the acceptance of the overpayment, at the time of receipt of the direct deposit,
lacks requisite knowledge. The Board has recognized that, in the case of electronic fund transfers
(EFTs), an employee would not receive notification of the date and amount of payment until after

6

A.B., Docket No. 18-0922 (issued January 3, 2019); E.V., Docket No. 17-2026 (issued July 11, 2018).

7

A.B., id.; R.S., Docket No. 17-1985 (issued March 23, 2018).

8

5 U.S.C. § 8129(b).

9

See C.Y., Docket No. 18-0263 (issued September 14, 2018).

10

20 C.F.R. § 10.433(a).

11

Id. at § 10.433(b); see also D.M., Docket No. 17-0983 (issued August 3, 2018).

12
Docket No. 05-0249 (issued June 20, 2005), Order Granting Petition for Recon. and Reaffirming Prior Decision,
Docket No. 05-0249 (issued July 24, 2006).

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the deposit was made and the overpayment created.13 Because fault is defined by what the claimant
knew or should have known at the time of acceptance, one of the consequences of EFTs is that the
claimant lacks the requisite knowledge at the time of the first incorrect payment.14
In this case, appellant received one electronic deposit on March 4, 2017 in the amount of
$3,378.81. OWCP failed to establish that he was at fault in the creation of the overpayment as he
could not avoid the incorrect payment sent by EFT.15 Although appellant accepted the
overpayment at the time it was deposited into his account, OWCP has not shown that he knew or
should have known at the time of the direct deposit on March 4, 2017 that the payment was
incorrect.16 Appellant had no reason to suspect at the time of the direct deposit that OWCP had
issued an incorrect payment since this was the first and only incorrect payment made.17
The Board finds that appellant was not at fault in the creation of the $3,378.81 overpayment
received on March 4, 2017.18 The case must be remanded for OWCP to determine whether he is
entitled to waiver of recovery of the overpayment, followed by an appropriate decision.19
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $3,378.81 for the period February 10 through March 4, 2017.
The Board further finds that OWCP improperly determined that appellant was at fault in the
creation of the $3,378.81 overpayment.

13

See J.H., Docket No. 15-0195 (issued March 17, 2015).

14

George A. Hirsch, 47 ECAB 520 (1996).

15

J.S., Docket No. 12-1707 (issued June 10, 2013).

16

V.A., Docket No. 12-0637 (issued August 27, 2012).

17

See S.C., Docket No. 14-1730 (issued April 13, 2015).

18

A.B., supra note 6; E.T., Docket No. 15-0611 (issued June 2, 2015).

19

A.B., id.

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ORDER
IT IS HEREBY ORDERED THAT the July 29, 2019 decision of the Office of Workers’
Compensation Programs is affirmed in part and set aside in part and the case is remanded for
further action consistent with this decision of the Board.
Issued: February 25, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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