United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
BRONX VETERANS MEDICAL CENTER,
Bronx, NY, Employer
__________________________________________

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

Docket No. 17-0609
Issued: October 5, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On January 18, 2017 appellant filed a timely appeal from an October 31, 2016 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.
ISSUE
The issue is whether appellant has met his burden of proof to establish that his claim
should be expanded to include additional lumbar spine conditions as causally related to his
accepted October 30, 2015 employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 5, 2015 appellant then a 55-year-old air conditioning equipment mechanic,
filed a traumatic injury claim (Form CA-1) alleging that, while moving a blood refrigerator out
of an operating room closet from a stationary platform to a movable cart for transport on
October 30, 2015, he sustained a lower left side muscle strain in his back. OWCP accepted
appellant’s claim for lumbar strain. Appellant did not stop work.
Appellant was treated by Dr. Ruth Kleinman, a Board-certified internist, on November 3,
2015 for a back strain. He reported that he felt lower left back pain on October 30, 2015 when
he and a coworker maneuvered a blood refrigerator out of the closet onto a rolling cart and.
Appellant noted continuing to work and notified his supervisor. Dr. Kleinman indicated that
appellant presented with muscle tightness in the left lower to mid back without radiation. She
noted findings on examination of no pain with palpation of the lower to mid back, intact bilateral
upper and lower extremity motor strength, intact reflexes, and decreased range of motion of the
back. Dr. Kleinman diagnosed back strain and prescribed medication. She returned appellant to
work with restrictions.
Appellant came under the treatment of Dr. Svetlana Ilizarov, Board-certified in physical
medicine and rehabilitation and sports medicine, on November 10, 2015 for low back pain
beginning October 30, 2015. He related that he was maneuvering a refrigerator out of a closet
and onto a rolling cart at work, which caused lower left back pain. Appellant noted having no
history of low back pain prior to this incident. He reported muscle tightness, no radiation to the
legs, tightness in the left gluteal area, and no bladder or bowel dysfunction. Appellant had pain
with forward flexion and left lateral bending as well as motor strength weakness in the extensor
hallucis longus (EHL) and left hip flexors. Dr. Ilizarov diagnosed left-sided low back pain with
some EHL weakness and possible herniated pulposus. On December 14, 2015 she treated
appellant for left sciatica. Appellant reported that his low back pain resolved completely, but he
had ongoing left leg pain. Dr. Ilizarov noted findings of pain with forward flexion and left
lateral bending, intact motor strength in the bilateral lower extremities, intact sensation and
reflexes, and left calf pain with straight leg raises. She noted a November 30, 2015 magnetic
resonance imaging (MRI) scan of the lumbar spine revealed L4-5 minimal-to-mild degeneration,
moderate left paracentral caudal disc herniation producing moderate indentation on the left
ventral thecal sac, and minimal/mild left greater than right neural foraminal impingement.
Dr. Ilizarov diagnosed left-sided low back pain since October 30, 2015 when he maneuvered a
refrigerator out of a closet at work, resolved, and two weeks later when his low back pain
improved he developed radiating pain to the left lateral calf.
On January 11, 2016 she noted that appellant reported less leg pain at night and that the
low back pain had resolved. Dr. Ilizarov noted pain with forward flexion and left lateral bending
to the distal leg, motor strength weakness at left EHL, and left hamstring pain with straight leg
raises. She diagnosed left-sided low back pain since the October 30, 2015 work incident,
resolved, radiation of pain to the left lateral calf, left L5 radiculopathy, and L4-5 left paracentral
caudal herniated nucleus pulposus confirmed by MRI scan.
By letter dated March 31, 2016, OWCP advised appellant that his claim originally
appeared to be a minor injury which resulted in minimal or no time loss from work. It indicated

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that the claim was administratively handled to allow limited medical payments, but the merits of
the claim had not been formally adjudicated. OWCP advised that, because the medical benefits
exceeded $1,500.00, the claim would be formally adjudicated. It requested that appellant submit
additional information including a comprehensive medical report from his treating physician,
including a reasoned explanation as to how the specific work factors or incidents identified by
appellant had contributed to his claimed injury.
On April 8, 2016 Dr. Ilizarov again treated appellant for worsening low back pain. She
noted appellant was unable to sit due to pain. Motor examination revealed weakness on the left
at EHL, and reflexes were absent at bilateral knees. Dr. Ilizarov noted a history of injury and
indicated that appellant had initially been treated for left-sided low back pain and weakness in
the EHL. Appellant developed radiation of pain to the left lateral calf two weeks later and left
L5 radiculopathy due to disc herniation confirmed by MRI scan. Dr. Ilizarov noted that
appellant currently had severe left-sided low back pain radiating to the left calf. She
recommended an epidural injection and advised that appellant was off duty until April 15, 2016.
On April 15, 2016 Dr. Ilizarov noted that appellant presented with significant symptom
improvement within three days of taking Etodolac. She recommended an epidural injection and
returned appellant to work with restrictions.
In a decision dated May 10, 2016, OWCP accepted appellant’s claim for lumbar strain. It
indicated that it continued to develop the additional diagnosed conditions which would be
addressed in a different decision.
In a decision dated May 17, 2016, reissued on May 18, 2016, OWCP denied appellant’s
request to expand his claim to include minimal-to-mild degeneration and moderate left disc
herniation, L4-5 minimal/mild left greater than right neural foraminal impingement, L5
radiculopathy, left side sciatica, mild-to-moderate desiccation of disc with mild diffuse bulging
of annulus at L2-3, annual tear and mild central spinal stenosis at the L2-3 level. It found that
the medical evidence of record was insufficient to establish that these diagnosed medical
conditions were causally related to accepted work events.
On June 8, 2016 appellant requested an oral hearing which was held on August 23, 2016.
He submitted additional evidence. In a June 3, 2016 report, Dr. Ilizarov treated appellant in
follow up for low back pain and sciatica. Appellant reported feeling better, but experienced pain
localized to the left buttock and posterior thigh area. Dr. Ilizarov noted findings of intact motor
strength except for left EHL weakness and reflexes were absent at the bilateral knees. She noted
a history of injury and appellant’s subsequent treatment for left sided low back pain and
weakness in the EHL. Appellant developed radiating of pain to the left lateral calf and L5
radiculopathy due to disc herniation confirmed by MRI scan. On April 8, 2016 he presented
with exacerbation of left lumbar radiculopathy due to disc herniation which had improved with
Etodolac and he returned to work with restrictions. Dr. Ilizarov diagnosed lumbar back pain,
lumbar disc herniation, and left lumbar radiculopathy which was causally related to the
October 30, 2015 injury at work. She recommended light-duty work with restrictions.
By decision dated October 31, 2016, an OWCP hearing representative affirmed the
May 18, 2016 decision.

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LEGAL PRECEDENT
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.2
Causal relationship is a medical issue that must be established by rationalized medical
opinion evidence.3 Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is causal relationship between the
claimant’s diagnosed condition and the implicated employment incident. 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 incident
identified by the claimant.4 The weight of medical evidence is determined by its reliability, its
probative value, its convincing quality, the care of analysis manifested, and the medical rationale
expressed in support of the physician’s opinion.5
ANALYSIS
Appellant alleges that he developed a lumbar strain, minimal-to-mild degeneration and
moderate left disc herniation, L4-5 minimal/mild left greater than right neural foraminal
impingement, L5 radiculopathy, left side sciatica, mild-to-moderate desiccation of disc with mild
diffuse bulging of annulus at L2-3, annual tear, and mild central spinal stenosis at the L2-3 level
as a result of moving a refrigerator from a stationary platform to a movable cart for transport
while at work on October 30, 2015. OWCP accepted the claim, as noted, for lumbar strain, but
did not accept appellant’s claim for the additional conditions. The Board finds that the medical
evidence is insufficient to establish that the above-noted conditions were causally related to the
October 30, 2015 work injury.
The medical records submitted most contemporaneously with the date of injury, note
treatment for lower left back pain after appellant and a coworker maneuvered a blood refrigerator
out of a closet onto a rolling cart. Specifically, notes from Dr. Kleinman, dated November 3,
2015, report treatment for low back pain. Dr. Kleinman noted that appellant presented with
muscle tightness in the left lower to mid back, no radiation, paresthesia, or incontinence. She
diagnosed back strain and returned appellant to work with restrictions. Dr. Kleinman noted no
pain with palpation of the lower to mid back, bilateral upper and lower extremity motor strength
was intact, and reflexes were intact. The Board has consistently held that contemporaneous
evidence is entitled to greater probative value than later evidence.6 This report does not support
2

Jaja K. Asaramo, 55 ECAB 200 (2004).

3

Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005).

4

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

5
Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
6

See Katherine A. Williamson, 33 ECAB 1696 (1982); Arthur N. Meyers, 23 ECAB 111 (1971).

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that the October 30, 2015 injury caused or aggravated any additional lumbar disc herniation, L45 foraminal impingement, L5 radiculopathy, sciatica desiccation of a disc, bulging discs at L2-3,
or spinal stenosis at L2-3.
Appellant submitted reports from Dr. Ilizarov dated November 10 and December 14,
2015 and January 11, April 8, and15, 2016. Dr. Ilizarov diagnosed left-sided low back pain
since October 30, 2015, resolved, radiation of pain to the left lateral calf, left L5 radiculopathy,
and L4-5 left paracentral caudal herniated nucleus pulposus confirmed by MRI scan. On April 8,
2016 she treated appellant for an exacerbation of left lumbar radiculopathy due to disc
herniation. However, Dr. Ilizarov is merely repeating the history of injury as reported by
appellant without providing her own opinion regarding these conditions were work related.7
Furthermore, she failed to provide a rationalized opinion regarding the causal relationship
between appellant’s conditions and the employment incident believed to have caused or
contributed to such condition.8
On June 3, 2016 Dr. Ilizarov treated appellant for low back pain and sciatica localized to
the left buttock and posterior thigh area. She noted a history of injury and appellant’s initial
treatment for left-sided low back pain and weakness which subsequently developed into radiating
pain to the left lateral calf and left L5 radiculopathy. Dr. Ilizarov diagnosed lumbar back pain,
lumbar disc herniation, and left lumbar radiculopathy which was causally related to the
October 30, 2015 injury at work. The Board finds that, although Dr. Ilizarov supported causal
relationship, she did not provide medical rationale explaining the basis of her conclusory opinion
regarding the causal relationship between appellant’s lumbar disc herniation and left L5
radiculopathy and the October 30, 2015 work injury.9 There is no medical explanation regarding
how the moving of a refrigerator on October 30, 2015 caused or aggravated these conditions.
Thus, this evidence is insufficient to meet appellant’s burden of proof.
Likewise, the remainder of the medical evidence submitted did not specifically address
how any mild degeneration and moderate left disc herniation, L4-5 minimal/mild left greater
than right neural foraminal impingement, L5 radiculopathy, left side sciatica, mild-to-moderate
desiccation of disc with mild diffuse bulging of annulus at L2-3, annual tear, and mild central
spinal stenosis at the L2-3 level were due to the accepted work injury of October 30, 2015.
Thus, these reports are insufficient to establish that any additional conditions are employment
related.10

7

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).
8

See Jimmie H. Duckett, supra note 5.

9

See T.M., Docket No. 08-975 (issued February 6, 2009) (a medical report is of limited probative value on the
issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by medical
rationale).
10

See A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).

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Appellant also submitted physical therapy notes. The Board has held that treatment notes
signed by a physical therapist have no probative value as physical therapists are not considered
physicians under FECA and is not competent to render a medical opinion.11 Thus, this evidence
is insufficient to meet appellant’s burden of proof.
On appeal appellant asserts that OWCP improperly denied his request to expand his
claim to include additional claimed conditions. He asserts that Dr. Ilizarov provided a
rationalized medical opinion explaining how the above-named conditions were due to the
accepted work injury of October 30, 2015. However, as noted above, the evidence submitted did
not provide medical rationale from a physician explaining the causal relationship between
appellant’s diagnosed conditions and the accepted work injury of October 30, 2015.12 Appellant
also notes that OWCP’s hearing representative references “M.L.” in his decision. The Board
finds that M.L.,13 is a Board decision that was properly cited by the hearing representative in
support of the proposition that a physician’s conclusory statement in support of causal
relationship of a condition to a work injury which is not fortified with rationale is entitled to little
probative value.
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.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his
additional claimed lumbar conditions were causally related to the October 30, 2015 employment
incident.

11

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician assistants, nurses and physical
therapists are not competent to render a medical opinion under the FECA); 5 U.S.C. § 8101(2) (this subsection
defines a ‘‘physician’’ as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by State law).
12

See T.M., supra note 9.

13

Docket No. 16-0240 (issued March 9, 2016).

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ORDER
IT IS HEREBY ORDERED THAT the October 31, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.

Issued: October 5, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.C., Appellant
and
U.S. POSTAL SERVICE, MID-AMERICA
PERFORMANCE CLUSTER, Kansas City, MO,
Employer
__________________________________________

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

Docket No. 09-1362
Issued: April 9, 2010

Case Submitted on the Record

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

JURISDICTION
On May 4, 2009 appellant filed a timely appeal from an April 17, 2009 merit decision of
the Office of Workers’ Compensation Programs concerning his schedule award. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant has established that he has greater than 12 percent
impairment of his right hand, for which he received a schedule award.
FACTUAL HISTORY
On January 10, 2007 appellant, then a 58-year-old maintenance mechanic, injured his
right hand when it was caught between a belt and rollers on machinery. He stopped work on
January 10, 2007 and sought emergency room treatment. The Office accepted the claim for
crushing injury of right hand, except fingers, and right hand abrasion or friction burn without
infection. Appropriate compensation benefits were authorized.

A January 10, 2007 right hand x-ray revealed moderate to marked soft tissue swelling
about the wrist and hand. A small cortical lucency was seen involving the ulnar styloid and the
possibility of a nondisplaced ulnar styloid fracture could not be excluded.
In a February 19, 2007 report, Dr. Keith R. Hodge, a Board-certified plastic surgeon,
noted the history of the January 10, 2007 injury and advised that there were no fractures and no
surgery. Appellant had current complaints of numbness to the dorsum of the hand as well as the
middle, ring and small fingers extending around to the palmer surface. The thumb and index
finger had normal sensation. Examination findings included a remnant of a wound on the
dorsum of the right hand and limited motion of the middle, ring and small fingers. The hand
remained stiff and edematous. Dr. Hodge diagnosed a crush to the right hand. He recommended
physical therapy and continued noting appellant’s status.
In a July 20, 2007 report, Dr. Dennison R. Hamilton, a Board-certified occupational
medicine specialist and second opinion physician, reviewed the medical evidence, statement of
accepted facts and provided findings on physical examination. He concluded that appellant had
right hand third and fourth digit chronic metacarpal phalangeal sprain with loss of range of
motion directly related to his crush injury. Dr. Hamilton stated that there were no motor, sensory
or reflex deficits involving the right upper extremity except weakness in right hand with regard
to simple and power gripping. He opined that appellant could not return to his date-of-injury
position, but could work with restrictions on repetitive use or power gripping of right hand.
On August 23, 2007 appellant claimed a schedule award. On August 30, 2007 the Office
advised appellant of the type of medical evidence needed to support his claim. This included
medical evidence providing a detailed description of the permanent impairment causally related
to the accepted work injury in accordance with the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).
In an October 24, 2007 report, Dr. George Varghese, a Board-certified physiatrist and an
Office referral physician, noted the history of injury and appellant’s treatment, reviewed the
statement of accepted facts and provided findings on physical examination. At the third and
fourth digit of the proximal phalanges, he found impaired sensation to light touch in the distal
aspect of the right hand at the volar and dorsal surfaces. Dr. Varghese found limited range of
motion in the third and fourth digit with flexion and extension of the metacarpal phalangeal (MP)
and proximal interphalangeal (PIP) joints. Muscle strength distally was 4+/5 with finger flexion,
abduction, adduction, wrist flexion and extension. Appellant’s grip was within normal limits.
Dr. Varghese opined that appellant reached maximum medical improvement and used the fifth
edition of the A.M.A., Guides in determining impairment. He advised that range of motion was
determined by using a goniometer. For the third digit at the metacarpal joint, Dr. Varghese
provided a total 20 percent impairment. He found under Figure 16.25, an extension of 10
degrees resulted in 3 percent impairment and flexion of 60 degrees equaled 17 percent
impairment. At the PIP, Dr. Varghese found 24 percent impairment. He found 10 degrees
extension resulted in 0 percent impairment and 60 degrees extension resulted in 24 percent
impairment. Under Figure 16.21, Dr. Varghese provided a zero percent rating for the distal
interphalangeal (DIP) joint. He used the Combined Values Chart to find a 39 percent rating for
the third digit. Under Table 16.1, Dr. Varghese converted the digit rating to seven percent hand
impairment and, under Table 16.2, converted the hand rating to six percent right upper extremity
impairment. For the fourth digit metacarpal joint, he provided 20 percent impairment.
Dr. Varghese found an extension of 10 degrees resulted in 3 percent impairment and flexion of
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60 degrees equaled 17 percent impairment. At the PIP, he found 30 percent impairment
comprising of 0 percent impairment for 10 degrees extension and 30 percent impairment for 50
degrees flexion. Dr. Varghese found 44 percent impairment for the fourth digit under the
Combined Values Chart, which he converted to 4 percent hand impairment under Table 16.1 and
4 percent right upper extremity impairment under Table 16.2. He indicated that, since he was
not supposed to take preexisting conditions into consideration, the sensory deficit along with the
posterior antibrachial cutaneous nerve was used, which resulted in one percent rating.
Dr. Varghese found 20 percent sensory deficit or Grade 4 under Table 16.10 which, when
multiplied by the 5 percent maximum sensory deficit impairment under Table 16.15, resulted in
1 percent rating. He found no impairment for pain as it was secondary to range of motion
limitation, which had already been rated. Dr. Varghese further stated no impairment rating was
offered for muscle strength. He concluded that appellant had a total impairment rating of 11
percent for his right upper extremity.
In a November 3, 2007 report, an Office medical adviser reviewed the evidence of
record. On the basis of Dr. Varghese’s report, he opined that appellant reached maximum
medical improvement on October 22, 2007 and had 12 percent permanent impairment of the
right hand. The medical adviser stated that, since two digits of the hand were involved, the digit
ratings had to be converted to hand ratings under Table 16-2, which Dr. Varghese did. He
advised the hand rating due to range of motion limitation was 11 percent, which consisted of 7
percent impairment of the third digit and 4 percent impairment of the fourth digit. The medical
adviser noted that, while Dr. Varghese offered one percent upper extremity impairment rating
due to a sensory deficit, the rating must be maintained as an impairment of the hand. Under
Table 16-2, page 439 of the A.M.A., Guides, one percent of the upper extremity equaled one
percent impairment of the hand. The medical adviser combined the 11 percent range of motion
deficit with the 1 percent sensory deficit to obtain a total 12 percent impairment rating of the
right hand.
By decision dated November 14, 2007, the Office granted appellant a schedule award for
12 percent impairment of the right hand. The award represented 29.28 weeks of compensation
and covered the period October 22, 2007 to May 13, 2008.
Appellant requested an oral hearing before an Office representative which was held
telephonically on March 11, 2008. The Office received medical evidence previously of record
which included diagnostic tests and medical reports from the University of Kansas Hospital
dated January 10, 2007 and medical reports and tests from Dr. Gordon R. Kelley, a Boardcertified neurologist, intermittently from January 11 to March 16, 2007. In the March 15, 2007
nerve conduction studies, Dr. Kelley noted abnormalities for the digital potentials from digits in
the second, third, fourth and fifth fingers. He advised the findings suggested mild diffuse
dysfunction of the sensory branches of the median and ulnar nerves in the right hand which may
be related to appellant’s history of diabetes and represented a mild diabetic neuropathy.
Dr. Kelly also advised there may be a component of a mild carpal tunnel syndrome.

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On May 27, 2008 an Office hearing representative affirmed the Office’s November 14,
2007 decision which found appellant had 12 percent impairment to the right hand.1
On June 6 and July 21, 2008 appellant requested reconsideration. In an April 6, 2008
report, Dr. Hodge advised he first saw appellant on February 19, 2007 after his crush injury to
the right hand. He indicated that appellant recently presented for a second opinion on an
impairment rating. Dr. Hodge noted referring appellant to obtain various flexion and grip
strength measurements. Based on the A.M.A., Guides, he found that appellant had 2 percent
impairment of the thumb, 26 percent impairment of the index finger, 51 percent impairment of
the middle finger, 56 percent impairment of the ring finger, and 58 percent impairment of the
little finger. Dr. Hodge converted those figures to hand and upper extremity impairment. Based
on Table 16-1, page 438, he found thumb impairment was 1 percent, index finger impairment
was 5 percent, middle finger impairment was 10 percent, ring finger impairment was 6 percent,
and little finger impairment was 6 percent, for a total hand impairment of 28 percent. Under
Table 16-2, page 439, Dr. Hodge converted 28 percent hand impairment to 25 percent arm
impairment. He noted that appellant had lack of grip strength which averaged 61 percent. Based
on Table 16-34, page 509, 61 percent strength loss equated to 30 percent impairment of the arm.
Dr. Hodge combined the 30 percent strength impairment with 25 percent right arm impairment to
find 55 percent total right arm impairment.
In an August 16, 2008 report, an Office medical adviser reviewed Dr. Hodge’s April 6,
2008 report. He noted that Dr. Hodge did not make any of the measurements that were recorded.
The medical adviser opined that Dr. Hodge’s report failed one of the first requisites of an
impairment rating report as discussed in section 2.2 of the A.M.A., Guides as the impairment
evaluation was not performed by a licensed physician. He further advised that appellant’s
current history was not mentioned in Dr. Hodge’s report. Thus, the medical adviser opined that
Dr. Hodge’s report contained an incomplete data base with respect to evaluation parameters that
must be considered in an impairment rating report as set forth on pages 21 and 22 of the A.M.A.,
Guides. As the evidence submitted lacked documentation regarding appellant’s current history
and failed to contain examination findings made by a physician, he opined it was inappropriate to
rate from sections 16.8 on pages 508 and 509. The medical adviser opined that Dr. Hodge’s
April 6, 2008 report provided no basis to revise appellant’s schedule award.
By decision dated August 29, 2008, the Office denied modification of its prior decision.
On October 9 and 17, 2008 appellant requested reconsideration. In an October 8, 2008
report, Dr. Hodge noted that he made a mistake in his previous impairment rating when he
included grip strength with appellant’s motion deficits. He advised that he examined appellant
and recalculated his permanent impairment, which equated to a total hand impairment of 36
percent. Dr. Hodge indicated that the thumb had 56 degrees of flexion at the IP joint and 47
degrees of flexion at the MP joint. The index finger had 50 degrees of flexion at the DIP joint,
75 degrees of flexion at the PIP joint and 52 degrees flexion at the MP joint. The middle finger
had 30 degrees flexion at the DIP joint, 60 degrees flexion at the PIP joint, 61 degrees of flexion
at the MP joint. The ring had 28 degrees flexion at the DIP joint, 66 degrees of flexion at the PIP
1

Appellant returned to work as a modified maintenance mechanic effective March 3, 2008. By decision dated
June 2, 2008, the Office determined that appellant’s employment as a modified maintenance mechanic fairly and
reasonably represented his wage-earning capacity.

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joint and 36 degrees flexion at the MP joint. Dr. Hodge also found a 28 degree extensor lag at
the ring finger PIP joint and 20 degree extensor lag at the MP joint. His small or little finger had
30 degrees flexion at the DIP joint, 56 degrees flexion at the PIP joint, and 22 degrees flexion at
the MP joint. Utilizing the charts and tables from the A.M.A., Guides, Dr. Hodge advised
appellant’s thumb had 2.705 percent impairment, the index finger had 31 percent impairment, the
middle finger had 73 percent impairment, the ring finger had 84 percent impairment and the little
finger had 64 percent impairment. He converted those impairments to hand impairments and
found 1 percent thumb impairment, 6 percent index finger impairment, 15 percent middle finger
impairment, 8 percent ring finger impairment, and 6 percent little finger impairment for a total
36 percent hand impairment.
In a November 11, 2008 report, the Office medical adviser found Dr. Hodge’s report not
acceptable for a review of a right hand schedule award determination. He noted that, while
Dr. Hodge’s October 8, 2008 report contained range of motion measurements for all five digits,
the statement of accepted facts and the medical records indicated that the only affected digits due
to the work injury were the third and fourth digits of the right hand. The Office medical adviser
additionally opined that Dr. Hodge’s report was not complete as he did not provide all the
necessary factors for an impairment report as outlined on pages 21 and 22 of the A.M.A.,
Guides. He further noted that it was not possible a thumb rating could be 2.705 percent under
Figures 16-21 and 23 and that the thumb was not affected by the work injury according to all the
medical documentation.
By decision dated November 18, 2008, the Office denied modification of its previous
decision.
On February 12, 2009 appellant requested reconsideration. He submitted a copy of the
November 17, 2008 order for physical therapy, physical therapy notes from December 9, 2008
through January 14, 2009, a January 19, 2009 discharge report and a copy of Dr. Hodge’s
October 8, 2008 report along with his letters of November 15 and January 22, 2009.
In a March 20, 2009 report, an Office medical adviser opined that there was no medical
basis to accept impairment to digits other than the third and fourth digits as being work related.
He reiterated that the medical documentation from Dr. Hodges could not be used to expand the
acceptance of injury or increase appellant’s impairment due to the accepted conditions as his
reports did not contain sufficient documentation as required by the A.M.A., Guides, on pages 21
and 22.
By decision dated April 17, 2009, the Office denied modification of its prior decision.
On appeal, appellant argued the work injury of January 10, 2007 impacted more than just two
fingers. He advised it severely reduced his grip and arm strength and left him with pain and
limited ability to do his work as a mechanic.

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LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations3 set forth the number of weeks of compensation to be paid for
permanent loss, or loss of use of the members of the body listed in the schedule. Where the loss
of use is less than 100 percent, the amount of compensation is paid in proportion to the
percentage of loss of use.4 However, neither the Act nor the regulations specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice for all claimants, the Office adopted the A.M.A., Guides as a standard for
determining the percentage of impairment and the Board has concurred in such adoption.5 A
claimant may seek an increased schedule award if the evidence establishes that he sustained an
increased impairment at a later date causally related to his employment injury.6
ANALYSIS
The Office accepted appellant’s claim for crushing injury of right hand, except fingers,
and right hand abrasion or friction burn without infection. On November 14, 2007 appellant
received a schedule award for 12 percent impairment of the right hand based on the Office
medical adviser’s review of Dr. Varghese’s second opinion October 24, 2007 report, which
found only the third and fourth digits of the right hand were involved. He requested
reconsideration and submitted additional evidence but the Office denied any greater award. The
Board finds that the case is not in posture for decision as to whether appellant is entitled to an
increased schedule award based on his accepted work-related conditions.
In determining whether appellant was entitled to more than 12 percent impairment to the
right hand, the Office relied upon its Office medical adviser review of Dr. Hodge’s April 6 and
October 8, 2008 medical reports. While the Office medical adviser opined that Dr. Hodge’s
reports were insufficient to base an impairment rating determination, the Board finds further
development from the Office is necessary.
The Office medical adviser dismissed Dr. Hodge’s April 6, 2008 report on the basis that
it lacked documentation regarding appellant’s current history and failed to contain examination
findings made by a physician. He dismissed Dr. Hodge’s October 8, 2008 report for similar
reasons. The record reflects, however, that Dr. Hodge had treated appellant since about five
weeks post injury. Additionally, while the Office medical adviser discredited Dr. Hodge because
he did not perform the impairment evaluation, section 2.2, page 18 of the A.M.A., Guides allows
Dr. Hodge to incorporate another’s examination findings as his own. Furthermore, Dr. Hodge’s
October 8, 2008 report was based on a new examination and the physician provided new range
of motion measurements.

2

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

3

20 C.F.R. § 10.404.

4

5 U.S.C. § 8107(c)(19).

5

20 C.F.R. § 10.404.

6

Linda T. Brown, 51 ECAB 115 (1999).

6

Dr. Hodge stated in his October 8, 2008 report that he had made a mistake in his previous
impairment rating when he included grip strength with appellant’s motion deficits. He then
reexamined appellant and recalculated his permanent impairment of a total hand impairment of
36 percent. The Office medical adviser, however, again discredited Dr. Hodge’s report on the
basis he did not provide all the necessary factors for an impairment rating. Although the Office
medical adviser stated that the statement of accepted facts and the medical record limited the
affected digits due to the work injury to the third and fourth fingers of the right hand, the record
indicates that the Office accepted a hand injury and there is no finding of record which limits the
acceptance of appellant’s work-related injury to just two fingers. In any event, the medical
adviser did not attempt to use the findings provided by Dr. Hodge to determine if they merited
any additional impairment under the A.M.A., Guides for any of appellant’s fingers.
Office procedures indicate that, when an Office medical adviser, second opinion
specialist or referee physician “renders a medical opinion based on a statement of accepted facts
which is incomplete or inaccurate or does not use the statement of accepted facts as the
framework in forming his or her opinion, the probative value of the opinion is seriously
diminished or negated altogether.”7 The statement of accepted facts in this case indicates that
appellant sustained a crushing injury of the right hand and a right hand abrasion. The Office
medical adviser provided no explanation as to why the accepted condition was limited to the
third and fourth digits of the right hand when Dr. Hodge initially found limited range of motion
to the middle, ring and small fingers when he diagnosed a crush injury to appellant’s right hand.
Additionally, the record reflects appellant may have a preexisting condition, such as a diabetic
neuropathy, which affects his arm. It is well established that in determining the amount of a
schedule award for a member of the body that sustained an employment-related permanent
impairment, preexisting impairments are to be included.8 Moreover, on appeal, appellant
contends that the work injury affected his arm. When impairment extends into an adjoining area,
the schedule award should be made for the larger member.9 Thus, the Office medical adviser did
not provide sufficient reasoning or base his medical opinion on an accurate medical history when
he rendered his opinion on Dr. Hodge’s reports. The Board notes that, while Dr. Hodge’s
October 8, 2008 report did not clearly indicate how the ranges of motion provided correlated to
the A.M.A., Guides under Figures 16-21, 23, and 25 or other applicable tables or figures, the
Office medical adviser did not attempt to rate impairment based on Dr. Hodge’s findings other
than to note that the 2.705 percent thumb finding was not supportable under the A.M.A., Guides.
The medical adviser did not indicate whether Dr. Hodge’s other specific findings from his
October 8, 2008 examination of the hand provided a basis under the A.M.A., Guides for more
than 12 percent impairment of the hand. Since the Office medical adviser did not render a
sufficiently reasoned medical opinion based on a complete medical and factual history, the
probative value of his report is limited. Accordingly, the Board finds that the case must be
remanded for further medical development.

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990).
8

Lela M. Shaw, 51 ECAB 372 (2000).

9

Janet L. Adamson, 52 ECAB 431, 434 (2001). The Board also notes that Dr. Varghese converted appellant’s
impairment rating to a rating for the arm but the medical adviser rejected impairment extending beyond the hand
without providing any particular medical reasoning.

7

Proceedings under the Act are not adversarial in nature nor is the Office a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, the Office
shares responsibility in the development of the evidence. Once it has begun an investigation of a
claim, it must pursue the evidence as far as reasonably possible. The Office has an obligation to
see that justice is done.10
The case, therefore, will be remanded for further medical development including a
reasoned medical opinion explaining whether appellant has any greater impairment due to his
accepted right hand injury than that which the Office has already granted and also whether any
such impairment extends from the hand to the arm.
CONCLUSION
The Board finds that this case is not in posture for decision to determine whether
appellant has more than 12 percent permanent impairment of his right hand, for which he
previously received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 17, 2009 is set aside and the case is remanded for further
proceedings consistent with this decision.
Issued: April 9, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10

A.A., 59 ECAB ___ (Docket No. 08-951, issued September 22, 2008).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
CROSSTOWN ANNEX, Roswell, GA, Employer
__________________________________________

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

Docket No. 19-1151
Issued: March 18, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On April 25, 2019 appellant filed a timely appeal from a January 18, 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.2
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $9,278.61 because she received total disability compensation for the period July 28
through December 8, 2018 after she had returned to full-time modified work; and (2) whether
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 18, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

OWCP properly found appellant at fault in the creation of the overpayment, thereby precluding
waiver of recovery of the overpayment.
FACTUAL HISTORY
On April 15, 2017 appellant, then a 43-year-old carrier technician, filed a traumatic injury
claim (Form CA-7) alleging that on April 14, 2017 she sustained a left knee injury3 when she was
involved in a motor vehicle accident while in the performance of duty. She stopped work on
April 14, 2017, returned to work on April 15, 2017, and stopped work again on April 20, 2017.
OWCP accepted the claim for left knee sprain and left knee internal derangement. It paid appellant
wage-loss compensation on the supplemental rolls, as of June 4, 2017, and on the periodic rolls,
as of November 12, 2017.
In a letter dated December 11, 2017, OWCP outlined appellant’s entitlement to
compensation benefits. An attached Form EN1049 instructed that, if she worked during any
portion of the covered period, and compensation payments were received via either paper check
or for payments sent by electronic funds transfer (EFT), she was to return the payment to OWCP
even if she had already advised OWCP that she was working. OWCP noted that appellant was
expected to monitor her EFT deposits carefully, at least every two weeks.
In a duty status report (Form CA-17) dated July 24, 2018, Dr. Victor Osisanyo, a Boardcertified physiatrist, released appellant to full-time work with restrictions effective July 26, 2018.
In a report of work status (Form CA-3) dated December 7, 2018, the employing
establishment advised OWCP that appellant had returned to limited-duty work on July 28, 2018.
By letter dated December 10, 2018, OWCP advised appellant of its preliminary
determination that she had received an overpayment of compensation in the amount of $9,278.61
because she received total disability compensation for the period July 28 through December 8,
2018 after she had returned to full-time modified work. It also made a preliminary finding that
she was at fault in the creation of the overpayment because she had accepted payments that she
knew, or reasonably should have known, to be incorrect. OWCP noted that appellant received a
net amount of $1,523.45 for the period July 28 through August 18, 2018; during the period
August 19 through November 10, 2018, she received a net amount of $5,816.82; and during the
period November 11 through December 8, 2018, appellant received a net amount of $1,938.34.
Therefore, because appellant had returned to full-time modified-duty employment she was
overpaid in the amount of $9,278.61. OWCP advised her that she could submit evidence
challenging the fact, amount, or finding of fault, and request waiver of recovery of the
overpayment. It requested that she complete an enclosed overpayment recovery questionnaire
(Form OWCP-20) and submit supporting financial documents. Additionally, OWCP notified
appellant that, within 30 days of the date of the letter, she could request a telephone conference, a
final decision based on the written evidence, or a prerecoupment hearing. Appellant did not
respond.

3
Appellant noted on the Form CA-1 that the claimed injury was a right knee contusion. The medical evidence of
record reveals, however, that the injury involved her left knee, not her right.

2

On December 19, 2018 OWCP received a Time Analysis Form (Form CA-7a) in which
appellant detailed hours of leave without pay taken from August 4, 2018.4
By decision dated January 18, 2019, OWCP finalized the preliminary determination of a
$9,278.61 overpayment of compensation for the period July 28 through December 8, 2018.5 It
determined that appellant was at fault in the creation of the overpayment and; therefore, she was
not entitled to waiver of recovery of the overpayment. OWCP required recovery in full within 30
days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty.6 Section 8129(a) of FECA provides, in pertinent part that, when
an overpayment has been made to an individual under this subchapter because of an error of fact
or law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.7
Section 8116(a) of FECA provides that, while an employee is receiving compensation, the
employee may not receive salary, pay, or remuneration of any type from the United States, except
in limited specified instances.8 OWCP’s procedures provide that an overpayment of compensation
is created when a claimant returns to work, but continues to receive wage-loss compensation.9
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $9,278.61 for the period July 28 through December 8, 2018.
The evidence of record established that appellant returned to full-time modified work at
the employing establishment on July 28, 2018. However, appellant continued to receive wage4
In a letter dated January 9, 2019, OWCP acknowledged receipt of appellant’s claim for wage-loss compensation
for the period August 4 to November 3, 2018. It informed her that the claim could not be processed as she had
submitted the forms directly to OWCP and the form had not been completed by the employing establishment. It
advised appellant to resubmit her claim for compensation through her employing establishment, which could then be
submitted to OWCP.
5
OWCP identified the period of the overpayment as July 28 to August 18, 2018, but this appears to be a
typographical error as OWCP’s calculation of the overpayment amount includes appellant’s compensation payments
through December 8, 2018.
6

5 U.S.C. § 8102(a).

7

Id. at § 8129(a).

8

Id. at § 8116(a).

9

S.H., Docket No. 19-0509 (issued August 23, 2019); K.E., Docket No. 18-0687 (issued October 25, 2018); B.H.,
Docket No. 09-0292 (issued September 1, 2009); Federal (FECA) Procedure Manual, Part 6 -- Debt Management,
Identifying and Calculating an Overpayment, Chapter 6.200.1(a) (September 2018).

3

loss compensation for total disability through December 8, 2018. As noted above, appellant is not
entitled to receive compensation for total disability after her return to work.10 Therefore, an
overpayment of compensation was created in this case.
With regard to the amount of overpayment, the Board finds that OWCP properly calculated
appellant’s compensation paid for the period July 28 through December 8, 2018.11 The record
contains no evidence contradicting fact or amount of the overpayment. Thus, the Board finds that
appellant received an overpayment of compensation in the amount of $9,278.61 for the period
July 28 through December 8, 2018.12
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.”13 A claimant who is at fault in the creation of the overpayment is not entitled to
waiver.14 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.15
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.16
The Board has held that an employee who receives payments from OWCP in the form of
a direct deposit may not be at fault the first time incorrect funds are deposited into his or her
account, as the acceptance of the resulting overpayment lacks the requisite knowledge.17 The
10

K.K., Docket No. 19-0978 (issued October 21, 2019); E.V., Docket No. 17-1328 (issued December 11, 2017);
Federal (FECA) Procedure Manual, id.
11

See supra note 3.

12

Appellant may still file claims for compensation (Form CA-7) through her employing establishment to claim
compensation for periods of disability. See 20 C.F.R. § 10.102.
13

5 U.S.C. § 8129(b).

14

R.G., Docket No. 18-1251 (issued November 26, 2019) C.Y., Docket No. 18-0263 (issued September 14, 2018).

15

20 C.F.R. § 10.433(a).

16

Id. at § 10.433(b); see also R.G., supra note 14; D.M., Docket No. 17-0983 (issued August 3, 2018).

17
C.H., Docket No. 19-1470 (issued January 24, 2020). See Tammy Craven, 57 ECAB 689 (2006); see also A.B.,
Docket No. 18-0922 (issued January 3, 2019).

4

Board has also held in cases involving a series of incorrect payments, where the requisite
knowledge is established by a letter or telephone call from OWCP, or simply with the passage of
time and a greater opportunity for discovery, the claimant will be at fault for accepting the
payments subsequently deposited.18
ANALYSIS -- ISSUE 2
The Board finds that appellant was not at fault with regard to OWCP’s deposit for the
period July 28 to August 18, 2018, and that she was at fault in the creation of the overpayment for
the period August 19 through December 8, 2018.
OWCP paid appellant compensation by direct deposit every 28 days. Appellant returned
to work on July 28, 2018. The first direct deposit appellant received after her return to work was
made on August 18, 2018 and included compensation for the period July 22 through
August 18, 2018. There is no evidence to demonstrate that appellant had clear knowledge at the
time the bank received the August 18, 2018 direct deposit that the payment was incorrect.19 The
Board, thus, finds that appellant was without fault in accepting the initial direct deposit which
covered the period July 28 through August 18, 2018.
The Board further finds that appellant was at fault in the creation of the overpayment from
the remaining direct deposit payments for the period August 19 through December 8, 2018.20
In a December 11, 2017 letter, OWCP notified appellant that to avoid an overpayment of
compensation, she must immediately notify it of her return to work. Appellant was required to
reimburse OWCP for compensation paid during a period in which she worked. Although OWCP
may have been negligent in making incorrect payments, this does not excuse a claimant from
accepting payments he or she knew or should have known to be incorrect.21 In cases involving a
series of incorrect payments, where the requisite knowledge is established by documentation from
OWCP or simply with the passage of time and opportunity for discovery, a claimant will be at
fault for accepting the payments subsequently deposited. By the time of the second payment,
appellant should have known that she was not entitled to the same amount of wage-loss
compensation as she had received prior to her return to work on July 28, 2018.22 After her receipt
of the first direct deposit following her return to work, she was on notice that OWCP began to
make payments to her in error and knew or should have known that she was not entitled to the
benefits of the subsequent direct deposits.

18

Id.

19
K.K., supra note 10; C.Y., supra note 14; see also M.M., Docket No. 15-0265 (issued May 27, 2015); Danny E.
Haley, 56 ECAB 393 (2005); Federal (FECA) Procedure Manual, supra note 9.
20

K.K., supra note 10; C.Y., supra note 14; D.W., Docket No. 15-0229 (issued April 17, 2014).

21

K.K., supra note 10; C.G., Docket No. 15-0701 (issued December 9, 2015).

22

Id.

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The Board therefore finds that the case is not in posture for decision regarding the issue of
waiver of recovery of the overpayment for the period July 28 through August 18, 2018. The case
is remanded to determine whether appellant is entitled to waiver of recovery of the overpayment
covering the period July 28 through August 18, 2018.23
CONCLUSION
The Board finds that OWCP correctly determined that appellant received an overpayment
of compensation in the amount of $9,278.61 because she received total disability compensation
for the period July 28 through December 8, 2018 after she had returned to full-time modified work.
The Board further finds that she was without fault in the creation of the overpayment for the period
July 28 through August 18, 2018, and that she was at fault in the creation of the overpayment for
the period August 19 through December 8, 2018. The case will be remanded to OWCP to consider
waiver of recovery of the overpayment for the period July 28 to August 18, 2018.
ORDER
IT IS HEREBY ORDERED THAT the January 18, 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: March 18, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

23

B.R., Docket No. 18-0339 (issued January 24, 2019).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Edison, NJ, Employer
__________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 12-311
Issued: July 25, 2012

Case Submitted on the Record

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

On November 7, 2011 appellant filed a timely appeal from an August 4, 2011 decision of
the Office of Workers’ Compensation Programs’ (OWCP) hearing representative, affirming a
February 4, 2011 OWCP decision terminating his wage-loss and medical compensation benefits.
The appeal was docketed as No. 12-311. On appeal, appellant’s representative argues that the
record does not establish that OWCP properly selected a referee physician pursuant to 5 U.S.C.
§ 8123(a).
A review of the record indicates that OWCP accepted that appellant sustained a
lumbosacral radiculopathy in the performance of duty on March 29, 2010. Appellant began
receiving compensation for wage loss as of June 8, 2010. With respect to a continuing
employment-related disability, OWCP found a conflict in the medical evidence between
attending physician, Dr. Mark Filippone, a Board-certified physiatrist and Dr. Jerome Rosman, a
Board-certified orthopedic surgeon selected as a second opinion physician.1
1

FECA provides that, if there is a 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 the
examination. 5 U.S.C. § 8123(a). The implementing regulations states that, if a conflict exists between the medical
opinion of the employee’s physician and the medical opinion of either a second opinion physician or an OWCP
medical adviser, OWCP shall appoint a third physician to make an examination. This is called a referee
examination and OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case. 20 C.F.R. § 10.321 (1999).

To resolve the conflict, OWCP selected Dr. Edward Krisiloff, a Board-certified
orthopedic surgeon, as a referee physician. The Board finds, however, the record does not
establish whether Dr. Krisiloff was properly selected as a referee physician in accord with
OWCP procedures.
A physician selected by OWCP to serve as a referee should be one wholly free to make a
completely independent evaluation and judgment. In order to achieve this, OWCP has
developed specific procedures for the selection of referee physicians designed to provide
adequate safeguards against any possible appearance that the selected physician’s opinion was
biased or prejudiced. The procedures contemplate that referee’s will be selected on a strict
rotating basis through the Physicians Directory System (PDS) in order to negate any appearance
that preferential treatment exists between a particular physician and OWCP.2
It is well established that OWCP has an obligation to verify that it selected Dr. Krisiloff
in a fair and unbiased manner. It maintains records for this very purpose.3 The current record
includes only a September 23, 2010 ME023 report (Appointment Schedule Notification) that
lists Dr. Krisiloff as the selected physician. There are no other documents, screen captures or
any other evidence showing how the PDS system was used to properly select Dr. Krisiloff in
accord with the strict rotational system used to select a referee physician.
The Board has placed great importance on the appearance as well as the fact of
impartiality and only if the selection procedures which were designed to achieve this result are
scrupulously followed may the selected physician carry the special weight accorded to an
impartial specialist.4 OWCP has not met its affirmative obligation to establish that it properly
followed its selection procedures in this case.5
The Board will remand the case to OWCP for proper selection of a referee physician.
After such further development as necessary, OWCP shall issue an appropriate decision.

2

See Raymond J. Brown, 52 ECAB 192 (2001).

3

M.A., Docket No. 07-1344 (issued February 18, 2008).

4

See D.M., Docket No. 11-1231 (issued January 25, 2012); D.L., Docket No. 11-660 (issued October 25, 2011).

5

An ME023 form is not sufficient documentation that OWCP properly followed its selection procedures. C.P.,
Docket No. 10-1247 (issued September 28, 2011, petition for recon. denied May 15, 2012).

2

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 4, 2011 is set aside and the case remanded for further
action consistent with this order of the Board.
Issued: July 25, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.L., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL EMERGENCY MANAGEMENT
AGENCY, Purvis, MS, Employer
__________________________________________

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

Docket No. 09-2338
Issued: August 12, 2010

Case Submitted on the Record

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

JURISDICTION
On September 23, 2009 appellant, through her representative, filed a timely appeal from a
July 22, 2009 decision of the Office of Workers’ Compensation Programs denying her
recurrence claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant established a recurrence of disability beginning April 16,
2008 causally related to her accepted March 21, 2007 employment injury.

FACTUAL HISTORY
On March 21, 2007 appellant, then a 45-year-old receiving/dispatch clerk, injured her
right knee when she stepped out of a traveling trailer.1 She did not stop work following the
injury.2 The Office accepted the claim for right knee lateral collateral ligament strain.
On April 6, 2007 Dr. Bruce M. McCarthy, a treating Board-certified orthopedic surgeon,
released appellant to limited duty with no climbing and no squatting. On November 26, 2007 he
diagnosed back pain, checked that appellant was disabled from working and recommended a
lumbar magnetic resonance imaging (MRI) scan.
In a December 5, 2007 work status report, Dr. McCarthy recommended an L5 MRI scan
be performed to determine when appellant could be released to work.
On December 13, 2007 appellant filed wage-loss compensation claims for the period
November 26 to December 22, 2007.
On January 21, 2008 Dr. Keith P. Melancon, a treating Board-certified orthopedic
surgeon, related that appellant was seen for complaints of pain in her right hip, right upper leg
and lower back. Appellant stated that she had no problems with her right leg until her 2007
employment injury. Dr. Melancon noted that on February 11, 2008 that appellant was seen for
pain in her right hip, knee and her lumbar problem. He reported that her right knee pain was
improving while her lumbar problem was worsening.
Appellant submitted claims for wage-loss compensation for the period September 4 to 5
and December 23, 2007 to March 1, 2008.
Dr. Melancon, in March 26, 2008 progress notes, reported that appellant was seen for
right knee and lumbar back pain. A review of an MRI scan revealed an L4-5 disc bulge which
Dr. Melancon related “coincides with the mechanism injury that she states happened when she
fell.”
Appellant’s employment was terminated on April 16, 2008 as her services were no longer
required. The Office noted that accommodation was not an issue.

1

The Office assigned claim number xxxxxx332. On June 22, 2008 it combined claim number xxxxxx089 with
claim number xxxxxx332, with the latter claim number as the master file. The Office noted that these claims were
duplicate claims. Claim number xxxxxx089 was based on a traumatic injury claim while claim number xxxxxx632
was based on a recurrence claim form.
2

Appellant filed a time analysis form (CA-7a) and claim for wage-loss compensation (Form CA-7) for the period
July 2 to August 3, 2007 for physical therapy treatment. The record contains no evidence that the Office authorized
physical therapy for appellant’s employment injury. On January 29, 2008 the Office informed appellant that it could
not process her claim for wage-loss compensation for the period July 2 to August 3, 2007 as her time analysis form
listed no leave without pay for the period claimed, but only indicated that the hours worked and leave used. Thus,
the Office noted that there was no compensable wage-loss compensation for the period claimed. Appellant was
advised that for routine medical appointments no more than four hours of wage-loss compensation is authorized.
The Office paid appellant wage-loss compensation for four hours on September 5, 2007 for a medical appointment.

2

In an April 16, 2008 decision, the Office denied acceptance of appellant’s claim for an
L4-5 disc bulge. It also denied her claim for wage-loss compensation for the period
November 26, 2007 to March 1, 2008 due to her lumbar condition.
On April 30, 2008 the Office received a March 26, 2008 work status report from
Dr. Melancon releasing appellant to work with restrictions. Dr. Melancon advised that appellant
was only capable of working a sit down job.
On June 9, 2008 Dr. Melancon noted that appellant was seen for lumbar back pain. He
related that significant improvement had been made with her lumbar condition. Dr. Melancon
noted that appellant was able to return to work, but had been fired.
On September 2, 2008 the Office received progress notes dated April 6, September 5 and
November 26, 2007 from Dr. McCarthy, who diagnosed a probable right torn medial meniscus in
an April 6, 2007 report and noted that she was developing more back complaints than knee
complaints in his November 26, 2007 report.
On October 27, 2008 Dr. Melancon noted that appellant was seen for lumbar and right
knee pain. He diagnosed left L5 radiculopathy and noted that appellant’s right knee was
bothering her more. Dr. Melancon recommended an MRI scan to determine whether she had a
meniscal tear.
On December 2, 2008 Dr. Melancon noted that appellant was seen for right knee pain and
that she was complaining of left knee problems. He diagnosed bilateral patellar chondromalacia
and intraligamentous ganglion, which he attributed to the March 21, 2007 employment injury.
On February 10, 2009 Dr. Melancon reported that treating appellant for right patellar
chondromalacia. He diagnosed patellar chondromalacia and intraligamentous ganglion, which
he attributed to her employment injury. On February 10, 2009 Dr. Melancon diagnosed bilateral
post-traumatic knee arthritis. On February 18, 2009 he indicated that appellant was seen for her
bilateral knee pain.
In an April 23, 2009 decision, the Office denied appellant’s request to accept her claim
for bilateral patellar chondromalacia, intraligamentous ganglion and bilateral knee post-traumatic
arthritis.3
On April 27, 2009 appellant filed a claim for wage-loss compensation for the period
April 16, 2008 to May 1, 2009.
In a May 26, 2009 letter, the Office noted receipt of appellant’s claim for wage-loss
compensation beginning April 16, 2008. It informed her that the evidence of record was
insufficient to establish disability and advised her to submit additional evidence. Appellant was
given 30 days to submit the requested information.

3

Appellant did not appeal the denial of expansion of her claim. Thus, the Board has not addressed it on this
appeal. See 20 C.F.R. § 501.3.

3

In a May 13, 2009 report, Dr. Melancon noted that appellant sustained an employment
injury which caused post-traumatic chondromalacia. He attributed appellant’s fall on her right
knee as the cause of post-traumatic right knee chondromalacia. Dr. Melancon stated that “posttraumatic chondromalacia is a condition that occurs when a compressive force is applied to two
articular surfaces, resulting in degeneration of the cartilage.”
In a decision dated July 22, 2009, the Office denied appellant’s claim for disability
beginning on April 16, 2008.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.4
Office procedures state that a recurrence of disability includes a work stoppage caused by
a spontaneous material change, demonstrated by objective findings, in the medical condition that
resulted from a previous injury or occupational illness without an intervening injury or new
exposure to factors causing the original illness. It does not, include a condition that results from
a new injury, even if it involves the same part of the body previously injured.5
A person who claims a recurrence of disability has the burden of establishing by the
weight of the substantial, reliable and probative evidence that the disability, for which she claims
compensation is causally related to the accepted employment injury.6 Appellant has the burden
of establishing by the weight of the substantial, reliable and probative evidence a causal
relationship between his recurrence of disability and his employment injury.7 This burden
includes the necessity of furnishing evidence from a qualified physician who, on the basis of a
complete and accurate factual and medical history, concludes that the condition is causally
related to the employment injury.8 Moreover, Drs. Melancon and McCarthy conclusion must be
supported by sound medical reasoning.9
The medical evidence must demonstrate that the claimed recurrence was caused,
precipitated, accelerated or aggravated by the accepted injury.10 In this regard, medical evidence
4

20 C.F.R. § 10.5(x); see S.F., 59 ECAB ___ (Docket No. 07-2287, issued May 16, 2008).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(b) (May 1997).

6

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

7

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

8

S.S., 59 ECAB ___ (Docket No. 07-579, issued January 14, 2008); Ricky S. Storms, 52 ECAB 349 (2001); see
also 20 C.F.R. § 10.104(a) (b).
9

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

10

See Ricky S. Storms, supra note 8; see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.2 (June 1995).

4

of bridging symptoms between the recurrence and the accepted injury must support
Dr. Melancon and Dr. McCarthy’s conclusion of a causal relationship.11 While the opinion of a
physician supporting causal relationship need not be one of absolute medical certainty, the
opinion must not be speculative or equivocal. The opinion should be expressed in terms of a
reasonable degree of medical certainty.12
ANALYSIS
The Office accepted the March 21, 2007 employment injury for a right knee lateral
collateral ligament strain. The employing establishment terminated appellant effective April 16,
2008 and she filed a claim for compensation beginning that date. The issue is whether her
disability commencing April 16, 2008 is causally related to her accepted knee injury.
In support of her claim, appellant submitted medical reports from Drs. Melancon and
McCarthy. The medical records from Drs. Melancon and McCarthy dated April 6 to
December 5, 2007 predate her claim for a recurrence of disability on April 16, 2008.
Dr. McCarthy released appellant to limited duty on April 6, 2007, he provided no opinion as to
whether the work restrictions were related to her accepted right knee injury. On November 26,
2007 Dr. Carthy determined appellant was disabled for work as a result of a lumbar condition
noting an L4-5 disc bulge. The Board notes that appellant’s claim accepted for any lumbar
condition related to the accepted incident. As Dr. McCarthy’s reports do not address the issue of
whether her recurrence of disability on April 16, 2008 was due to her accepted knee condition,
they are insufficient to establish appellant’s recurrence claim.13
From January 21, 2008 to May 28, 2009 Dr. Melancon treated appellant for hip, bilateral
knee and lumbar back conditions. He first diagnosed an L4-5 disc bulge on March 26, 2008 and
in a work status report that date indicated that she was capable of performing sedentary work. In
subsequent reports, Dr. Melancon diagnosed bilateral post-traumatic knee arthritis and patellar
chondromalacia and intraligamentous ganglion which he attributed to the employment injury.
While he provided diagnoses of L4-5 disc bulge, bilateral post-traumatic knee arthritis, bilateral
patellar chondromalacia and intraligamentous ganglion, these conditions have not been accepted
by the Office.14 Dr. Melancon did not provide sufficient explanation addressing how these
conditions were caused by the accepted injury or arose as the accepted incident. Moreover he
did not adequately explain any disability concerning April 16, 2008 or how it related to the

11

For the importance of bridging information in establishing a claim for a recurrence of disability, see Richard
McBride, 37 ECAB 748 at 753 (1986)
12

See Ricky S. Storms, supra note 8; Morris Scanlon, 11 ECAB 384 (1960).

13

Michael E. Smith, 50 ECAB 313 (1999).

14

Charles W. Downey, 54 ECAB 421 (2003); Alice J. Tysinger, 51 ECAB 638 (2000) (for conditions not
accepted by the Office as being employment related, it is the employee’s burden to provide rationalized medical
evidence sufficient to establish causal relation, not the Office’s burden to disprove such relationship).

5

accepted right knee sprain. The Board has held that opinions unsupported by rationale are of
diminished probative value.15
Appellant has failed to establish by the weight of the reliable, probative and substantial
evidence, that she was disabled as of April 16, 2008 due to her accepted right knee lateral
collateral ligament strain.
CONCLUSION
The Board finds that appellant has not established that her recurrence of disability on and
after April 16, 2008 is causally related to her accepted March 21, 2007 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 22, 2009 is affirmed.
Issued: August 12, 2010
Washington, DC

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

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

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

15

T.M., 60 ECAB ___ (Docket No. 08-975, issued February 6, 2009); Roma A. Mortenson-Kindschi, 57 ECAB
418 (2006).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.T., Appellant
and
DEPARTMENT OF THE NAVY, BANGOR
NAVAL SUBMARINE BASE, Silverdale, WA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
John Eiler Goodwin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1619
Issued: February 24, 2014

Case Submitted on the Record

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

JURISDICTION
On June 28, 2013 appellant, through his attorney, filed a timely appeal from a January 2,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.3

1

Under the Board’s Rules of Procedure, an appeal must be filed in 180 days from the most recent OWCP
decision. One hundred and eighty days from January 2, 2013 was July 1, 2013. Since using July 3, 2013, 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 appeal was postmarked on June 28, 2013, which renders the appeal timely
filed. See 20 C.F.R. § 501.3(f)(1).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that appellant, through his attorney, is only appealing from OWCP’s January 2, 2013 decision.
Although the Board has jurisdiction over OWCP’s June 7, 2013 merit decision, appellant has not appealed this
decision, which denied his claim for compensation for leave without pay from April 25 to May 3, 2013. Therefore,
the Board has not addressed it on this appeal. See 20 C.F.R. § 501.3(a), (c).

ISSUES
The issues are:
(1) whether appellant received a $2,934.53 overpayment of
compensation; and (2) whether OWCP abused its discretion in denying waiver of the
overpayment.
On appeal, counsel contends that OWCP improperly offset the amount of the
overpayment by withholding money owed to appellant which denied administrative due process.
He further contends that appellant’s wife did not work outside the home after appellant returned
to work at the employing establishment. Counsel requested that the Board set aside the
overpayment decision and return the case record to OWCP for additional development and
issuance of a de novo decision.
FUAL HISTORY
OWCP accepted that on February 27, 2007 appellant, then a 24-year-old shipfitter,
sustained a lumbar strain and temporary and permanent aggravation of a herniated nucleus
pulposus while moving a steel plate. He stopped work on June 24, 2009 as no work was
available within his physical limitations. OWCP placed appellant on the periodic compensation
rolls and paid wage-loss compensation for his total disability.
On June 6, 2012 the employing establishment advised OWCP that appellant had returned
to full-time modified-duty work as a transportation assistant on that date.4 OWCP stopped his
automatic compensation payment, but he continued to receive total disability compensation from
June 3 to 30, 2012.
On June 7, 2012 appellant filed a claim (Form CA-7) for wage-loss compensation for a
medical appointment on June 8, 2012.
By letter dated June 27, 2012, OWCP made a preliminary determination that appellant
received an overpayment of compensation in the amount of $2,934.53 from June 3 to 30, 2012
because he continued to receive disability compensation after his return to work. It explained the
calculation of the overpayment and found that he was without fault in its creation because he was
not aware nor could he reasonably have been expected to know that it had paid compensation
incorrectly as a result of an inability to stop the payment prior to its issuance. OWCP requested
that appellant complete an enclosed overpayment recovery questionnaire (Form OWCP-20) and
submit supporting financial documents to determine the issue of waiver. Additionally, it notified
him that, within 30 days of the date of the letter, he could request a telephone conference, a final
decision based on the written evidence or a prerecoupment hearing.
The completed overpayment worksheet indicated that appellant received net
compensation of $3,445.66 for the stated period when he should have received $414.43. OWCP
credited deductions it made for $96.70 in compensation for the June 8, 2012 medical

4

In an August 7, 2012 decision, OWCP found that appellant’s actual wages as a transportation assistant as of
June 6, 2012 fairly and reasonably represented his wage-earning capacity.

2

appointment, $18.30 for basic life insurance premiums and $7.08 for optional life insurance
premiums, which yielded an overpayment of compensation of $2,909.15.
On July 27, 2012 OWCP reissued the preliminary overpayment determination because
the previous notice had been returned to OWCP as undeliverable. It determined that appellant
received net compensation in the amount of $3,868.00 when he should have received $414.43.
OWCP retroactively deducted $396.96 for health benefits, $18.30 for basic life insurance
premiums, $7.08 for optional life insurance premiums and $96.70 in compensation he should
have been paid for the June 8, 2012 medical appointment, resulting in an overpayment of
compensation of $2,934.53.
On August 1, 2012 appellant requested a telephone prerecoupment hearing. He noted
that the overpayment occurred through no fault of his own and requested a waiver of repayment.
At the October 25, 2012 prerecoupment hearing, appellant’s attorney did not dispute the
fact of overpayment, but disagreed with the calculation of the overpayment amount. Citing
Board cases, he contended that OWCP improperly offset the overpayment with amounts owed to
appellant and it denied him administrative due process. Counsel requested that OWCP issue a de
novo decision to correct the amount of the overpayment. He noted that if an OWCP hearing
representative determined that the amount of the overpayment was significantly larger than what
was calculated, the claim should be remanded for recalculation. Counsel contended that the
$1,000.00 offset was a significant amount and appellant would have a better chance of having
the debt waived if it was larger. He stated that appellant’s monthly expenses included $850.00
for rent; $166.00 for car insurance; $300.00 for a car note; $156.00 for two cellphones with no
home telephone; $100.00 for electricity and heat: $150.00 for his son’s special needs tuition;
$46.00 for garbage; $600.00 for food; $60.00 to $90.00 for diapers for a three-year old son;
$75.00 for car repairs; $30.00 for school supplies; $25.00 for school lunches; $125.00 for
clothing; $40.00 for yard work; $50.00 for miscellaneous that was allowed under OWCP
procedure manual; and $25.00 for over-the-counter medication. Counsel stated that a creditor’s
garnishment was lifted and appellant owed Harrison Medical Center $1,150.00 or $100.00 a
month. Appellant had a $700.00 balance for speech therapy for his son, which required a
monthly payment of $110.00. He owed a children’s dentist $1,150.00 or $75.00 a month.
Appellant had no bank credit cards. He lost his 2001 Honda when he did not receive
compensation. Appellant’s wife testified that she had no jewelry, artwork, airplane, boat,
all-terrain vehicle, second home, time share property, furs, stocks or bonds. She had about
$192.00 in a bank account. Appellant and his wife had $27.00 in cash. He contended that they
could not afford to repay the overpayment now, but maybe they could do so in a year.
Appellant’s monthly take-home pay was $3,746.00 and his wife had no income. Counsel
concluded that Board case precedent indicated that the case should be remanded if an
overpayment was not calculated correctly to allow appellant to have a prerecoupment hearing
regarding the correct amount.
On November 1, 2012 appellant submitted a Form OWCP-20 and accompanying
documents listing monthly income of $3,746.00. He reiterated his monthly expenses set forth
during the October 25, 2012 prerecoupment hearing. Appellant also listed additional monthly
expenses of $40.00 for Seattle Spine and Sports Medicine; $150.00 for Puget Sound Collections;
$375.00 for tithes; $480.00 for gasoline; and $400.00 balance for his surrendered automobile,

3

totaling $4,629.00. He submitted financial documents. Bank of America checking account
statements showed direct deposits on April 24, 2012 for $602.81, May 8, 2012 for $350.29 and
June 5, 2012 for $207.61 from Communitas Group. The statements also showed direct deposits
for $918.83 on July 10, 2012 and $341.88 on August 10, 2012 from Kitsap Tenant Payroll.
These direct deposits were made in appellant’s wife’s name. The bank statements indicated that
appellant transferred $5,613.93 from his savings account to his checking account during the
period March 14 to September 7, 2012.
In a January 2, 2013 decision, an OWCP hearing representative finalized the $2,934.53
overpayment, finding that appellant was not entitled to waiver of recovery of the overpayment.
The hearing representative found that OWCP did not make a $1,000.00 offset. The offset was
only $96.70 and OWCP properly considered the offsets in its calculations according to Board
legal precedent. The hearing representative further found that appellant’s monthly income
exceeded his monthly expenses by $50.00. Discrepancies in appellant’s testimony regarding his
lack of assets cast serious doubt on his claim that he would experience serious hardship in
repaying the overpayment. The hearing representative noted his statement that his only income
was his federal salary, but also noted that the Bank of America statements showed payroll
payments made to his wife. Appellant’s wife testified that they only had $192.00 in a bank
account, but a bank statement showed that $5,613.93 was transferred from appellant’s savings
account to his checking account. The hearing representative stated that appellant did not report
this asset on the Form OWCP-20. She allowed documented expenses for rent, food, clothing,
Puget Sound Collections, car note, insurance, electricity, water, garbage collection, gasoline,
diapers, school supplies, miscellaneous and over-the-counter medication. The hearing
representative disallowed expenses for Seattle Spine and Sports Medicine, cell phones, Internet,
tuition, car repairs, yard work, Harrison Medical Center, speech therapy, school supplies and
dentist in the amount of $842.00 because appellant had not submitted financial documents to
support these expenses. Based on the evidence of record the hearing representative found that
appellant could repay the overpayment in the amount of $100.00 every month.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his duty.5 Section 8129(a) of FECA provides, in pertinent part, “When an
overpayment has been made to an individual under this subchapter because of an error of fact or
law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.”6
Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, he
or she may not receive salary, pay or remuneration of any type from the United States, except in
limited circumstances.7 OWCP regulations provide that compensation for wage loss due to
5

5 U.S.C. § 8102(a).

6

Id. at § 8129(a).

7

Id. at § 8116(a); R.H., Docket No. 09-1981 (issued June 11, 2010).

4

disability is available only for any periods during which an employee’s work-related medical
condition prevents him or her from earning the wages earned before the work-related injury.8 An
employee is not entitled to compensation for total disability after returning to full-time work.9
ANALYSIS -- ISSUE 1
The Board finds that appellant has received an overpayment of compensation as he was
paid total disability compensation for the period June 3 to 30, 2012 after his return to work at the
employing establishment effective June 2, 2012.10
However, OWCP has not properly
determined the amount of the overpayment.
OWCP determined that appellant received an overpayment of compensation in the
amount of $2,934.53. It, however, offset this amount with the under-withholding of health
benefits and basic and optional life insurance premiums and the underpayment of compensation
created when it failed to pay appellant compensation for a June 8, 2012 medical appointment.
Such offsets are not allowed, as they permit an unrestricted recovery of the offset portion of the
overpayment without regard to the relevant factors set forth in 20 C.F.R. § 10.441(a),11 which
deny administrative due process with respect to the amounts offset.12 The case will, therefore, be
remanded for OWCP to properly calculate the entire amount of the overpayment of
compensation and to consider waiver of the entire amount of the overpayment. After conducting
such further development as is deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that appellant received an overpayment of compensation from June 3 to
30, 2012 as he received compensation for total disability after he returned to work. However, the
Board finds that the case is not in posture for determining the amount of overpayment.13

8

20 C.F.R. § 10.500.

9

M.J., Docket No. 09-469 (issued August 24, 2009).

10

5 U.S.C. § 8116(a); 20 C.F.R. § 10.500.

11

This section states that in collecting an overpayment of compensation OWCP shall decrease later payment of
compensation by taking into account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual and any other relevant factors, so as to minimize any hardship.
12

Diana L. Booth, 52 ECAB 370, 373 (2001) (finding that OWCP’s offset practice denied administrative due
process rights with respect to the amount offset); Michael A. Grossman, 51 ECAB 673, 678 (2000).
13

As OWCP has not established the amount of overpayment, it is not necessary for the Board to address the issue
of waiver.

5

ORDER
IT IS HEREBY ORDERED THAT the January 2, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed as to the fact of the overpayment. The decision is
set aside as to the amount of the overpayment and remanded for further action consistent with
this decision of the Board.
Issued: February 24, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6