United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.V., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
LAW ENFORCEMENT SUPPORT CENTER,
Williston, VT, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Paul J. Perkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1687
Issued: March 5, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 8, 2009 appellant, through counsel filed a timely appeal from a December 8,
2008 nonmerit decision of the Office of Workers’ Compensation Programs denying his request
for reconsideration. The last merit decision was issued by the Office on September 6, 2007. As
there is no merit decision of the Office within 180 days of the filing of this appeal, the Board
lacks jurisdiction to review the merits of this case pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.1
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration of
the merits of the claim pursuant to 5 U.S.C. § 8128(a).

1

The date of the appeal was determined by the postmark on the envelope accompanying the appeal.

FACTUAL HISTORY
On April 29, 2003 appellant, then a 25-year-old law enforcement technician, filed a
traumatic injury claim alleging that on that date she sustained a left ankle sprain when she missed
a step while walking down the stairs. She fell and twisted her ankle.
Appellant submitted an April 28, 2003 x-ray interpretation and April 28, 2003 emergency
room reports from Fletcher Allen Health Care. The x-ray found no ankle fracture. The reports
from Fletcher Allen Health Care reported left ankle discoloration and diagnosed a left ankle
sprain.
In a June 29, 2006 report, Dr. Ivan Tomek, a treating physician, diagnosed a left hip
labrum tear. He attributed this condition to appellant’s fall on April 29, 2003. Dr. Tomek noted
that at the time of the injury the focus had been on appellant’s left foot injury, but that her left
hip pain began at this time. He opined that appellant’s pain and left hip labrum tear were
consistent with her fall after missing a step while going down the stairs, particularly as she had
no hip problems prior to this injury.
On August 16, 2006 appellant filed a claim for a recurrence of disability due to the
April 29, 2003 injury. She noted that she had been in discomfort since the injury and that the
diagnosis of a torn left hip labral was the cause of the discomfort.
In letters dated October 12, 2006, the Office informed appellant the evidence was
insufficient to support her claim. As to appellant’s claim for a traumatic injury, on April 29,
2003 the Office informed her that no diagnosis had been made due to the employment incident.
She was advised as to the medical and factual evidence to submit. With respect to her recurrence
claim, the Office informed her as to the definition of a recurrence and requested evidence to
support her claim for medical treatment.
In a November 8, 2006 report, Dr. Tomek noted that he first saw appellant on
March 22, 2006. He diagnosed a left hip labrum tear and related that appellant informed him
that she had groin pain and discomfort which was aggravated by activity.
By decision dated January 17, 2007, the Office denied appellant’s traumatic injury claim.
It found the medical evidence was insufficient to establish that the left hip labrum tear was
causally related to the April 29, 2003 employment incident.
In a letter dated February 12, 2007, appellant’s counsel requested an oral hearing before
an Office hearing representative, which was held on June 7, 2007. At the hearing Dr. Mark J.
Bucksbaum, an examining Board-certified physiatrist, stated that he reviewed the medical
records and opined that appellant’s labral tear was directly related to the April 29, 2003
employment incident. He stated that there were “no other intervening events or suggestions to
explain an alternate theory for a mechanism of injury.” Dr. Bucksbaum testified that pain from a
labral tear would not manifest for a period of months or years. He related that a labral tear is
usually caused by trauma such as a rapid twisting motion or a fall and that appellant’s fall was
consistent for causing a labral tear.

2

In a February 12, 2007 report, Dr. Bucksbaum diagnosed traumatic left hip labral tear
based upon a review of medical evidence, employment injury history and physical examination.
He opined that appellant sustained a left hip labral tear due to the April 28, 2003 incident as she
had no functional limitations or significant left hip pain prior to the April 28, 2003 incident.
By decision dated September 6, 2007, the Office hearing representative affirmed the
denial of appellant’s claim.
On September 5, 2008 appellant’s counsel requested reconsideration and resubmitted the
February 12, 2007 report by Dr. Bucksbaum. She contended that Dr. Bucksbaum’s opinion was
rationalized and that the fact that he examined her three years after the injury should not be
determinative of its rationality.
By decision dated December 8, 2008, the Office denied appellant’s request for
reconsideration of the merits. It noted that appellant did not submit any new evidence with her
request, but presented arguments in support of her request.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,2 the Office’s regulations provide that a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.3 To be entitled to a merit
review of an Office decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.4 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.5
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.6 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.7 While the reopening of a case may be predicated

2

5 U.S.C. §§ 8101-8193. Section 8128(a) of the Act provides that [t]he Secretary of Labor may review an award
for or against payment of compensation at any time on her own motion or on application.
3

20 C.F.R. § 10.606(b)(2). See J.M., 60 ECAB ___ (Docket No. 09-218, issued July 24, 2009); Susan A. Filkins,
57 ECAB 630 (2006).
4

20 C.F.R. § 10.607(a). See S.J., 60 ECAB ___ (Docket No. 08-2048, issued July 9, 2009); Robert G. Burns, 57
ECAB 657 (2006).
5

20 C.F.R. § 10.608(b). See Y.S., 60 ECAB ___ (Docket No. 08-440, issued March 16, 2009); Tina M. ParrelliBall, 57 ECAB 598 (2006).
6

Arlesa Gibbs, 53 ECAB 204 (2001); James E. Norris, 52 ECAB 93 (2000).

7

Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

3

solely on a legal premise not previously considered, such reopening is not required where the
legal contention does not have a reasonable color of validity.8
ANALYSIS
The Office denied appellant’s claim that she sustained an employment-related injury as a
result of the April 29, 2003 employment incident. It found that there was insufficient medical
evidence explaining how her left hip labrum/labral tear or other medical condition was due to the
April 29, 2003 employment incident.
On September 5, 2008 appellant’s counsel requested reconsideration and resubmitted a
February 12, 2007 report by Dr. Bucksbaum. This report was previously of record and
considered by the Office. Evidence which repeats or duplicates evidence already in the case
record, however, has no evidentiary value and does not constitute a basis for reopening a case.9
On reconsideration, appellant asserted that Dr. Bucksbaum’s testimony and report were
rationalized and sufficient to support her claim that her labrum/labral tear was employment
related. She has not, however, raised any specific argument showing how the Office erred in its
January 17 and September 6, 2007 decisions. Appellant’s representative merely recited excerpts
from Dr. Bucksbaum statements, contending that the physician’s reports were rationalized and
sufficient to establish appellant’s claim. She also noted that there is no contrary medical opinion
evidence. The Office previously reviewed the medical evidence of record including the evidence
from Dr. Bucksbaum and found that he failed to sufficiently explain how appellant’s
labral/labrum tear was causally related to the April 29, 2003 employment incident. Evidence
which repeats or duplicates evidence already in the record does not constitute a basis for
reopening the case for a merit review.10 Appellant failed to meet any of the regulatory criteria
for reopening her claim for further merit review.
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of her claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied her request for reconsideration.
CONCLUSION
The Board finds that the Office properly denied appellant’s September 5, 2008 request
for reconsideration without conducting a merit review of the claim.

8

Vincent Holmes, 53 ECAB 468 (2002); Robert P. Mitchell, 52 ECAB 116 (2000).

9

S.J., supra note 4; Elaine M. Borghini, 57 ECAB 549 (2006).

10

Supra note 6.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 8, 2008 is affirmed.
Issued: March 5, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE AIR FORCE,
)
SCOTT AIR FORCE BASE, IL, Employer
)
___________________________________________ )
D.F., Appellant

Docket No. 09-1232
Issued: June 16, 2010

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

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 9, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decision dated March 17, 2009, which affirmed the Office’s
November 12, 2008 schedule award decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the schedule award determination.
ISSUE
The issue is whether appellant has more than a three percent impairment of the right
lower extremity and more than a three percent impairment of the left lower extremity for which
he received a schedule award.
FACTUAL HISTORY
On November 28, 2005 appellant, then a 41-year-old physical security specialist, filed a
traumatic injury claim alleging that, on that same date, he lifted an office desk and sustained an
abdominal hernia and a herniated disc in his low back. He did not initially stop work. The

Office accepted appellant’s claim for the conditions of aggravation of L4-5 herniated disc and
sciatica. It authorized L4-5 microdiscectomy performed on April 12, 2007.
A January 23, 2006 magnetic resonance imaging (MRI) scan read by Dr. Anand Singh, a
Board-certified diagnostic radiologist, revealed a small central disc herniation at L4-5 with
impingement on the right L5 nerve root. In a February 23, 2006 report, Dr. Joseph Sherrill, a
Board-certified neurosurgeon, determined that appellant had a disc complex at L4-5 on the right
which would require traction or surgery.
In a March 20, 2007 report, Dr. Paul Santiago, a neurosurgeon, indicated that appellant
complained of back pain traveling down both legs, right worse than left. He diagnosed L5
radiculopathy on the right, possible partial radiculopathy on the left and L4-5 herniated nucleus
pulposus and recommended surgery. In an April 12, 2007 operative report, Dr. Santiago noted
performing a right L4-5 open microdiscectomy.
On January 2, 2008 appellant filed a Form CA-7 claim for a schedule award. In a
January 25, 2008 report, Dr. Santiago indicated that immediately after surgery appellant’s
preoperative pain improved dramatically. However, since then, he noted that appellant related a
recurrence of symptoms of pain and numbness and tingling from his buttocks down to his feet
but denied weakness of the lower extremities. Dr. Santiago advised that diagnostic testing
revealed no further herniation at L4-5 and a small right paracentral disc bulge without a
significant neural impingement and a small central disc herniation with no significant central
impingement at L5-S1.
He found that appellant was status post right L4-5 open
microdiscectomy for L5 radiculopathy and advised that he had previously been worked up for
peripheral neuropathy “without any evidence of neuropathy on electrodiagnostic testing. Despite
this, appellant may have a very mild neuropathy at present.” Dr. Santiago advised that appellant
reached maximum medical improvement and was not disabled.
In a May 21, 2008 report, Dr. Martin Fritzhand, a Board-certified urologist, noted
appellant’s history. He related that appellant had complaints of constant sharp low back pain
radiating to both hips and both legs down to the toes, exacerbated by prolonged ambulation,
standing, bending, stooping or lifting heavy objects. Dr. Fritzhand also noted that appellant had
complaints of pain and numbness in both legs. He examined appellant and determined that he
had limited range of motion, of the spine and diminished muscle strength. Dr. Fritzhand utilized
the American Medical Association, Guides to the Evaluation of Permanent Impairment,
(A.M.A., Guides) (5th ed. 2001). He referred to Table 17-37 to determine the maximum
impairment value due to nerve deficits.1 For the sciatic nerve, Dr. Fritzhand noted that the
maximum impairment of the leg due to sensory loss and pain is 17 percent while the maximum
value due to motor loss is 75 percent. He referred to Table 16-10 to rate the impairment for
sensory loss.2 Dr. Fritzhand determined that, under Table 16-10, appellant qualified for a grade
of 3/5 or 50 percent deficit as she had difficulty performing some activities of daily living, which
included performing some household chores, sports and extracurricular activities. Under the
procedure in Table 16-10, he multiplied the 50 percent deficit by the 17 percent maximum
1

A.M.A., Guides 552.

2

Id. at 482.

2

impairment for sensory loss for the sciatic nerve which equated to 9 percent impairment. For
motor loss, Dr. Fritzhand referred to Table 16-11 and determined that appellant qualified for a
motor deficit of 4/5 or 25 percent.3 Under the procedure in Table 16-11, he multiplied the
25 percent deficit by the 75 percent maximum impairment for motor loss for the sciatic nerve
which equated to 19 percent impairment. Dr. Fritzhand referred to the Combined Values Chart
and determined that appellant had an impairment of 26 percent for each leg.
In a June 30, 2008 report, an Office medical adviser noted the reports of Dr. Santiago and
Dr. Fritzhand. He indicated that appellant continued to have pain in the low back radiating into
both legs. The Office medical adviser also advised that Dr. Santiago, the operating surgeon,
found normal strength. He explained that, based on Dr. Santiago’s evaluation, there was no
objective evidence to support any residual lower extremity impairment. The Office medical
adviser noted that Dr. Fritzhand found impairment based on sciatic nerve pathology. He
explained that, in appellant’s case, there was “nothing wrong with the sciatic nerve. If anything,
the pathology is isolated to the L5 nerve root.” The Office medical adviser explained that a
follow-up lumbar spine MRI scan revealed that a large disc herniation in the lateral recess was
no longer evident and that there was no other significant pathology. He opined that it was
“difficult to explain [appellant’s] current subjective complaints of pain.” The medical adviser
stated that the only impairment that appellant had would be impairment of three percent to each
leg for residual pain in the L5 nerve root bilaterally. He explained that it was based upon a
Grade 3 for pain in the distribution of the L5 nerve root according to Table 15-15 and Table 1518.4 The Office medical adviser further noted that appellant could squat, walk heel-to-toe and on
the heels and toes and advised that there was little evidence to support any additional impairment
for weakness. He stated that appellant reached maximum medical improvement on January 25,
2008, the date he was released from Dr. Santiago’s care.
On August 13, 2008 the Office referred appellant along with a statement of accepted facts
and the medical record to Dr. Marvin Mishkin, a Board-certified orthopedic surgeon, for an
impartial medical evaluation to resolve the conflict in opinion between Dr. Fritzhand and the
Office medical adviser regarding the extent of appellant’s impairment.
In a September 2, 2008 report, Dr. Mishkin noted appellant’s history of injury and
treatment and utilized the A.M.A., Guides. He stated that appellant complained of constant back
and bilateral leg pain to the toes with intermittent tingling and an occasional charley horse of the
entire right leg. Dr. Mishkin observed that appellant could walk easily and without difficulty
that he could walk and balance on his toes and heels without pain or evidence of motor weakness
and had a normal gait. He found that appellant had equal circumference of the thighs and knees,
a normal response to pinprick and light touch and negative straight leg raising. On standing,
appellant could bend forward flexing his back to 50 degrees and then assume an upright posture
and extend his back to 25 degrees. However, Dr. Mishkin noted that, when lying supine on the
examining table he could sit upright. In doing this, appellant could flex his back beyond
90 degrees, flex his hips beyond 90 degrees and, with his knees extended, could bend forward so
his fingertips touched his ankles. Dr. Mishkin noted that appellant could maintain that posture
3

Id. at 484.

4

Id. at 424.

3

without pain or discomfort or muscle spasm. He explained that he concurred with the Office
medical adviser’s impairment assessment and advised that appellant had an impairment of three
percent for the right leg and three percent for the left leg based on the distribution at the L5 nerve
root. Dr. Mishkin opined that he could “find no evidence of motor weakness of the lower
extremities and no evidence of atrophy.” He found that appellant had subjective complaints of
pain in the back and lower extremities and subjective complaints of dysesthesia along the medial
aspect of both calves. However, Dr. Mishkin explained that appellant’s reflexes were
symmetrical. He noted that the mobility of appellant’s back was excellent, in that he could sit
upright, bend forward and touch his toes. Dr. Mishkin explained that, despite chronic subjective
complaints, there was no objective evidence. He advised that appellant could “stand on his toes
and heels. Appellant can balance on either leg. He can walk with a normal gait. There is no
muscle atrophy.” Dr. Mishkin explained that appellant had active flexion of his back at the
lumbar spine of 90 degrees, was able to bend forward and touch his toes and had active extension
to 30 degrees. He also indicated that appellant did not have ankylosis of the joints.
On November 12, 2008 the Office granted appellant a schedule award for a three percent
permanent impairment of the left lower extremity and a three percent permanent impairment of
the right lower extremity. The award covered a period of 17.28 weeks from January 25 to
May 24, 2008.
On November 17, 2008 appellant’s representative requested a hearing, which was held on
February 10, 2009. During the hearing appellant indicated that he did not have a history of back
or leg problems prior to his work injury. Appellant’s representative argued that Dr. Fritzhand’s
report supported a higher impairment.
In a December 18, 2008 report, Dr. Fritzhand indicated that the Office medical adviser
and the impartial medical examiner only found impairment for sensory loss and did not allow for
muscle weakness. He opined that appellant “certainly had muscle weakness involving both
lower extremities.” Dr. Fritzhand explained that the “finding of muscle weakness, especially in
the 4-4+/5 range is not far from normal and can certainly vary on examination from physician to
physician.” He advised that appellant’s muscle strength was not normal and justified a finding of
4-4+/5. Dr. Fritzhand also opined that the primary injured nerve secondary to appellant’s low
back injury was the sciatic nerve. He reviewed his prior calculation and explained that he
referred to Figures 17-8, 17-9 and Table 17-37 to determine that this would result in impairment
to each lower extremity of 26 percent.5 Dr. Fritzhand opined that this most accurately
represented appellant’s injury impairment. He explained that appellant had a two-level disc
herniation and that the L5 and S1 nerve roots were involved. Dr. Fritzhand also noted
impairment could also be rated using tables that were less advantageous for appellant and
referred to Tables 15-15, (using a 3/5 rating to grade for sensory impairment), Table 15-16
(using a 4/5 rating to grade motor/power deficit) and 15-18.6 He explained that for the L5 nerve
root -- 5 percent multiplied by a 50 percent grade was equal to 2.5 percent. Dr. Fritzhand also
explained that 37 percent multiplied by a 25 percent grade was equal to 9.25 percent. For the S1
nerve root, he advised that 5 percent multiplied by a 50 percent grade was equal to 2.5 percent
5

Id. at 551, 552.

6

Id. at 424, 428.

4

and 20 percent multiplied by a 25 percent grade was equal to 6.25 percent. Dr. Fritzhand utilized
the Combined Values Chart7 and opined that appellant’s permanent impairment to each lower
extremity in this scenario would be 20 percent. He found that appellant’s impairment to each
lower extremity ranged from 20 to 26 percent depending upon which tables and figures were
utilized. Dr. Fritzhand recommended that “some sort of compromise” be made in appellant’s
best interest.
By decision dated March 17, 2009, the Office hearing representative affirmed the
Office’s November 12, 2008 decision.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act8 set 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.9 The Act, 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 for all claimants under the law, good administrative practice requires the use of
uniform standards applicable to all claimants.10 The Act’s implementing regulations has adopted
the A.M.A., Guides as the appropriate standard for evaluating schedule award losses.11
The Act12 provides that if there is disagreement between the physician making the
examination for the Office and the employee’s physician, the Office shall appoint a third
physician who shall make an examination.13 In cases where the Office has referred appellant to
an impartial medical examiner to resolve a conflict in the medical evidence, the opinion of such a
specialist, if sufficiently well rationalized and based upon a proper factual background, must be
given special weight.14
ANALYSIS
The Office accepted appellant’s claim, the conditions of aggravation of L4-5 herniated
disc and sciatica. A microdiscectomy was performed on April 12, 2007.
The Office determined that a conflict of medical opinion existed between Dr. Fritzhand,
who supported an impairment of 26 percent to the right lower extremity and 26 percent to the left
7

Id. at 604.

8

5 U.S.C. §§ 8101-8193.

9

Id. at § 8107.

10

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

11

20 C.F.R. § 10.404.

12

5 U.S.C. §§ 8101-8193, 8123(a).

13

Id. at § 8123(a); Shirley Steib, 46 ECAB 309, 317 (1994).

14

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

5

lower extremity and the Office medical adviser, who supported 3 percent impairment for each
leg. Therefore, it properly referred appellant to Dr. Mishkin, a Board-certified orthopedic
surgeon, for an impartial medical examination to resolve the conflict.
When a case is referred to an impartial medical examiner for the purpose of resolving a
conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual and medical background, must be given special weight.15 The Office relied upon the
opinion of Dr. Mishkin in determining that appellant had a three percent permanent impairment
of the right lower extremity and a three percent permanent impairment of the left lower
extremity.
In a September 2, 2008 report, Dr. Mishkin noted appellant’s history of injury and
treatment and conducted a physical examination. While he noted that appellant had subjective
complaints that, included constant back and bilateral leg pain to the toes, his examination
revealed that appellant could walk easily and without difficulty and that he could walk and
balance on his toes and on his heels without pain or evidence of motor weakness. Dr. Mishkin
also determined that appellant’s gate was normal, that there was no atrophy, that he had a normal
response to pinprick and light touch and a negative SLR. He opined that he could “find no
evidence of motor weakness of the lower extremities and no evidence of atrophy.” Dr. Mishkin
noted that appellant had subjective complaints of pain in the back and lower extremities and
subjective complaints of dysesthesia along the medial aspect of both calves. However, his
reflexes were normal. Dr. Mishkin also determined that the mobility of appellant’s back was
excellent, in that he could sit upright, bend forward and touch his toes. He explained that,
despite the subjective complaints of a chronic nature, there was no objective evidence.
Dr. Mishkin concluded that, based on the distribution at the L5 nerve root, appellant had
impairment of three percent to the right lower extremity and three percent to the left lower
extremity. According to Table 15-18, the maximum percentage loss of function due to sensory
deficit or pain is five percent.16 Under Table 15-15, the Board notes that a Grade 3 for pain in
the distribution of the L5 nerve root would receive a maximum sensory deficit of 60 percent.17
As set forth in the procedure for Table 15-15, the severity of the sensory deficit multiplied by the
maximum impairment value of the L5 nerve root (60 percent times 5 percent) which results in an
impairment of 3 percent for sensory loss. Dr. Mishkin concluded that appellant would be
entitled to receive an impairment of three percent to each lower extremity.
The Board finds that Dr. Mishkin’s opinion is entitled to special weight as his reports are
sufficiently well rationalized and based upon a proper factual background. The Office properly
relied upon his report in finding that appellant was entitled to an impairment of three percent to
the right lower extremity and three percent to the left lower extremity. Dr. Mishkin examined
appellant, reviewed his medical records and reported accurate medical and employment histories.
He found no basis on which to attribute any greater impairment. There is no probative medical

15

Richard R. LeMay, 56 ECAB 341 (2005).

16

A.M.A., Guides 424.

17

Id.

6

evidence of record establishing that appellant has more than three percent impairment to the right
lower extremity and three percent impairment to the left lower extremity.
Subsequent to the examination by Dr. Mishkin, appellant submitted the December 18,
2008 report of Dr. Fritzhand, who elaborated on his findings and presented several methods for
calculating sensory or motor impairment. He did not reexamine appellant, but merely provided
alternative calculations and also reiterated previous findings regarding appellant’s condition. As
Dr. Mishkin had been on one side of the conflict in the medical opinion that, the impartial
specialist resolved, his report was insufficient to overcome the special weight accorded the
impartial specialist or to create a new medical conflict.18
The Board finds that the medical evidence does not establish that appellant was entitled
to more than a three percent impairment of the right lower extremity and more than a three
percent impairment of the left for which he has already received an award.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained more than a three percent impairment of the right lower extremity and more than a
three percent impairment of the left lower extremity for which he received a schedule award.

18

Alice J. Tysinger, 51 ECAB 638 (2000); Barbara J. Warren, 51 ECAB 413 (2000).

7

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 17, 2009 and November 12, 2008 are affirmed.
Issued: June 16, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
EDUCATION & TRAINING COMMAND,
ALTUS AIR FORCE BASE, OK, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-0104
Issued: March 9, 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 October 18, 2018 appellant filed a timely appeal from a September 4, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.3

1

Appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of Procedure.
20 C.F.R. § 501.5(b). By order dated December 10, 2019, the Board exercised its discretion and denied the request,
finding that the arguments on appeal could adequately be addressed in a decision based on the case record. Order
Denying Request for Oral Argument, Docket No. 19-0104 (issued December 10, 2019).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the September 4, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $19,670.12 for which he was not at fault, as he
concurrently received Social Security Administration (SSA) age-related retirement benefits while
receiving FECA wage-loss benefits for the period February 1, 2016 to March 31, 2018; and
(2) whether it properly denied waiver of recovery of the overpayment.
FACTUAL HISTORY
On June 20, 1997 appellant, then a 47-year-old aircraft mechanic, filed a traumatic injury
claim (Form CA-1) alleging that on that date he sustained a head and neck injury when a rail swung
down and hit his head while in the performance of duty. OWCP accepted the claim for concussion,
cervical and lumbar sprains, brachial neuritis or radiculitis, displacement of the lumbar
intervertebral disc without myelopathy, and cervical intervertebral disc disorder with myelopathy.
Appellant stopped work on June 20, 1997. On February 16, 1999 he returned to limitedduty work for four hours per day, but stopped work again on February 18, 1999. On June 11, 1999
appellant accepted a job offer as a technical order clerk with the employing establishment at four
hours per day. On August 18, 2000 OWCP reduced appellant’s wage-loss compensation based
upon his wage-earning capacity. Appellant continued to work and received wage-loss
compensation on the periodic rolls.
In February 2012, appellant became eligible to receive SSA age-related retirement benefits.
In EN1032 forms dated February 20, 2016, February 23, 2017, and February 19, 2018,
appellant indicated that he had not received SSA benefits as part of an annuity for federal service.
On March 21, 2018 OWCP provided SSA with a Federal Employees’ Retirement System
(FERS)/SSA dual benefits calculation form. On April 6, 2018 SSA submitted the completed form,
which indicated SSA benefit rates with a FERS offset and without a FERS offset from February
2016 through December 2017. The SSA representative noted that appellant was entitled to
disability benefits from February 2001 through January 2016. Beginning February 2016, the SSA
rate with FERS was $1,920.00 and without FERS was $1,168.40. Beginning December 2016, the
SSA rate with FERS was $1,925.70 and without FERS was $1,171.90. Beginning December 2017,
the SSA rate with FERS was $1,964.20 and without FERS was $1,195.30.
A FERS offset calculation worksheet dated April 17, 2018 noted each period of
overpayment and provided calculations, which resulted in a total overpayment of $19,670.12
during the period February 1, 2016 through March 31, 2018.
In a preliminary determination notice dated April 27, 2018, OWCP informed appellant that
he received an overpayment of compensation in the amount of $19,670.12 because the SSA/FERS
offset was not applied to payments for the period February 1, 2016 through March 31, 2018. It
determined that he was without fault in the creation of the overpayment, because he was not aware,
nor could he reasonably have been expected to know, that it had paid him compensation
incorrectly. OWCP requested that appellant submit a completed Form OWCP-20 to determine a
fair repayment method, and advised him that he could request a waiver of recovery of the

2

overpayment. It requested financial information, including copies of income tax returns, bank
account statements, bills, pay slips, and any other records to support income and expenses. OWCP
advised appellant that it would deny waiver if he failed to furnish the requested financial
information within 30 days. It further notified appellant that, within 30 days of the date of the
letter, he could request a telephone conference, a final decision based on the written evidence, or
a prerecoupment hearing.
On May 5, 2018 appellant requested a prerecoupment hearing before OWCP’s Branch of
Hearings and Review, contesting that the overpayment occurred through no fault of his own and
requested waiver. During the hearing, appellant testified regarding his income and expenses. He
reported the income he received from SSA benefits, Army Reserve retirement benefits, Veterans
Administration disability benefits, as well as his wife’s SSA benefits and Railroad Administration
benefits. Appellant also listed specific expense amounts for his monthly mortgage, food, clothing,
utilities, telephone, internet, automobile loan, automobile maintenance, automobile insurance,
medical expense, Dish TV, lawn care, and credit cards.
OWCP’s hearing representative held the record open for 30 days for the submission of
documentation of appellant’s assets, income, and expenses.
By decision dated September 4, 2018, OWCP’s hearing representative finalized OWCP’s
determination that appellant had received an overpayment of compensation in the amount of
$19,670.12 because the SSA/FERS offset was not applied to payments for the period February 1,
2016 through March 31, 2018. She further found that he was without fault in the creation of the
overpayment, but denied waiver of recovery of the overpayment. The hearing representative noted
that no response was received following the preliminary determination. She required recovery of
the overpayment in full.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.4 Section 8116 limits the right of an employee to receive compensation. While an employee
is receiving compensation, he or she may not receive salary, pay, or remuneration of any type from
the United States.5
Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount
of compensation by the amount of SSA benefits that are attributable to federal service of the
employee.6 FECA Bulletin No. 97-09 provides that FECA compensation have to be adjusted for
the FERS portion of SSA benefits because the portion of the SSA benefit earned as a federal

4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

6

20 C.F.R. § 10.421(d); see S.O., Docket No. 18-0254 (issued August 2, 2018); L.J., 59 ECAB 264 (2007).

3

employee is part of the FERS retirement package, and the receipt of FECA benefits and federal
retirement concurrently is a prohibited dual benefit.7
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $19,670.12 as he concurrently received SSA age-related benefits
while receiving FECA wage-loss compensation for the period February 1, 2016 through
March 31, 2018.
As noted, a claimant cannot receive concurrent FECA compensation for wage-loss and
SSA retirement benefits attributable to federal service for the same period.8 The information
provided by SSA accurately indicated that appellant had received SSA age-related benefits that
were attributable to his own federal service from February 1, 2016 through March 31, 2018. Thus,
the record establishes that appellant received an overpayment of FECA wage-loss compensation.9
To determine the amount of the overpayment, the portion of the SSA age-related retirement
benefits that were attributable to federal service must be calculated. The Board finds that OWCP
properly determined the amount of the overpayment. To determine the amount of overpayment,
the SSA provided appellant’s SSA rate with FERS and without FERS during the applicable period.
OWCP determined that the difference of the portion of SSA age-related retirement benefits
attributed to appellant’s federal service needed to be offset against his OWCP compensation
benefits. It found that, since SSA age-related retirement benefits were paid monthly (12 per year)
and FECA benefits were paid every 28 days (13 per year), the monthly offset had to be adjusted
to a 28-day payment cycle amount. This amount differed for each period beginning
February 1, 2016. OWCP calculated that the lack of offset from February 1, 2016 to March 31,
2018 resulted in an overpayment in the amount of $19,670.12.
The Board has reviewed OWCP’s calculations and finds that it properly determined that
appellant received prohibited dual benefits totaling $19,670.12, thus creating an overpayment of
compensation in that amount, for the period February 1, 2016 through March 31, 2018.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless “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.”10 Section 10.438 of OWCP’s regulations provides that the individual who
received the overpayment is responsible for providing information about income, expenses, and
assets as specified by OWCP. This information is needed to determine whether or not recovery of
7

FECA Bulletin No. 97-09 (February 3, 1997).

8
Supra note 6. See also N.B., Docket No. 18-0795 (issued January 4, 2019); A.C., Docket No. 18-1550 (issued
February 21, 2019).
9

Id.

10

5 U.S.C. § 8129.

4

an overpayment would defeat the purpose of FECA or be against equity and good conscience.
Failure to submit the requested information within 30 days of the request shall result in denial of
waiver.11
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the $19,670.12
overpayment of compensation.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience.12 Appellant,
however, had the responsibility to provide the appropriate financial information and
documentation to OWCP.13
In its preliminary determination dated April 27, 2019, OWCP clearly explained the
importance of providing the completed overpayment questionnaire and financial information,
including copies of income tax returns, bank account statements, bills, pay slips, and any other
records to support income and expenses. It advised appellant that it would deny waiver if he failed
to furnish the requested financial information within 30 days. While appellant testified at the
hearing regarding his income and expenses, he did not complete a Form OWCP-20 nor did he
submit any supporting financial documentation necessary for OWCP to determine if recovery of
the overpayment would defeat the purpose of FECA or if recovery would be against equity and
good conscience.
Consequently, as appellant did not submit the information required under 20 C.F.R.
§ 10.438 of OWCP’s regulations, which was necessary to determine his eligibility for waiver, the
Board finds that OWCP properly denied waiver of recovery of the overpayment.14
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$19,670.12 for which he was not at fault, as he concurrently received SSA age-related benefits
while receiving FECA wage-loss benefits for the period February 1, 2016 to March 31, 2018. The
Board also finds that OWCP properly denied waiver of recovery of the overpayment.

11

20 C.F.R. § 10.438.

12

Id. at § 10.436.

13

Id. at § 10.438.

14

See T.E., Docket No. 19-0348 (issued December 11, 2019).

5

ORDER
IT IS HEREBY ORDERED THAT the September 4, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 9, 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

6


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

)
)
)
)
)
)
)
)

Docket No. 21-1223
Issued: September 29, 2021

Case Submitted on the Record

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

On August 10, 2021 appellant filed an appeal from an August 13, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-1223.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act. 1
For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s review
authority is limited to appeals which are filed within 180 days from the date of issuance of OWCP ’s
decision.2
The 180th day following the August 13, 2020 decision was February 9, 2021. As appellant
did not file an appeal with the Board until August 10, 2021, more than 180 days after the
August 13, 2020 OWCP decision, the Board finds that the appeal docketed as No. 21-1223 is
untimely filed. The Board is without jurisdiction to review the appeal. Appellant has not offered

1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

2

Id. at § 501.3(e).

a reason to explain the failure to timely file an appeal with supporting documentation sufficient to
establish compelling circumstances.
The Board’s decisions and orders are “final upon the expiration of 30 days from the date
of their issuance.”3
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-1223 is dismissed.
Issued: September 29, 2021
Washington, DC

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

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

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

3

Id. at § 501.6(d).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
DEPARTMENT OF THE ARMY, ANNISTON
ARMY DEPOT, Anniston, AL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-1097
Issued: November 24, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 4, 2008 appellant filed a timely appeal from a January 14, 2008 nonmerit
decision of the Office of Workers’ Compensation Programs denying his request for a
prerecoupment hearing, a February 11, 2008 merit decision finding that he received a $17,894.93
overpayment of compensation and an October 25, 2007 merit decision finding that he was
entitled to a schedule award for six percent monaural hearing loss in the left ear. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the appeal.
ISSUES
The issues are: (1) whether the Office properly denied appellant’s request for a
prerecoupment hearing on the grounds that the request was untimely; (2) whether appellant has
more than six percent monaural hearing loss in the left ear; (3) whether the Office properly

determined that an overpayment of compensation in the amount of $17,894.93 existed; and
(4) whether the Office properly found that appellant was not eligible for waiver.1
FACTUAL HISTORY
On October 5, 2006 appellant, then a 60-year-old electrician, filed an occupational
disease claim alleging that he sustained a hearing loss in the performance of duty due to working
around high voltage lines.
On March 15, 2007 appellant was sent for a second opinion evaluation with Dr. Jeffrey
Kunkes, Board-certified in otolaryngology, to determine if he had a noise-induced hearing loss
related to his employment.
An audiogram was completed on March 15, 2007 which reflected testing at frequency
levels including those of 500, 1,000, 2,000 and 3,000 cycles per second (cps) and revealed
decibel losses on the left of 15, 15, 20 and 65 respectively and on the right of 20, 15, 20 and 45
respectively. Dr. Kunkes diagnosed high frequency sensorineural hearing loss due to exposure
in the workplace. The district medical adviser reviewed the audiogram and found appellant to
have bilateral sensorineural hearing loss with a left monaural schedule award of six percent.
On April 19, 2007 the Office accepted appellant’s claim for sensorineural hearing loss.
On April 24, 2007 appellant filed a claim for a schedule award.
By decision dated July 26, 2007, the Office granted appellant a schedule award for six
percent impairment of bilateral hearing. The award covered a period of compensation from
March 15 to September 29, 2007.
In an October 23, 2007 letter, the Office informed appellant that the July 26, 2007
decision was set aside as it erroneously paid compensation based on a binaural hearing loss
instead of a monaural hearing loss.
In an October 25, 2007 decision, the Office granted a schedule award for six percent loss
of hearing of the left ear. The award covered a period of compensation of 3.12 weeks from
March 15 through April 5, 2007 for an award of $2,206.06.
In a November 13, 2007 letter, the Office made a preliminary determination that
appellant received an overpayment of $17,894.93 and that he was not at fault in creation of the
overpayment. Appellant was paid one payment of $8,787.87 and four payments of $2,828.28 for
a total of $20,100.99 during the period March 15 to September 29, 2007 but he should have been
paid only $2,206.06 for the period March 15 to April 5, 2007, resulting in an overpayment of
$17,894.93. The Office informed appellant that he needed to complete and submit the enclosed
overpayment recovery questionnaire in order for the Office to consider the question of waiver.
1

The Board will not address manner of recovery in this case as the Board’s jurisdiction over recovery of an
overpayment is limited to reviewing those cases where the Office seeks recovery from continuing compensation
under the Act. Lorenzo Rodriguez, 51 ECAB 295 (2000).

2

On December 19, 2007 appellant requested a prerecoupment hearing on the issues of
fault and possible waiver.
In a January 14, 2008 decision, the Office denied appellant’s request for a prerecoupment
hearing on the grounds that the request was untimely and that the issue in the case could equally
be addressed by requesting reconsideration and submitting evidence not previously considered.
In a February 11, 2008 decision, the Office found that appellant had been paid an
overpayment in the amount of $17,894.93, that he was not at fault in the creation of the
overpayment and that he was not entitled to a waiver.
LEGAL PRECEDENT -- ISSUE 1
The Office’s procedures on the recovery of overpayments are found in the Code of
Federal Regulations at 20 C.F.R. § 10.321. The regulations provide that, before collecting an
overpayment, the Office must provide the claimant with written notice of the fact and amount of
overpayment, the finding of fault, the right to submit evidence challenging the fact, amount or
finding of fact and the right to request waiver of the overpayment.2 The regulations also provide
that a claimant is entitled to submit additional evidence in writing or at prerecoupment hearing,
that a prerecoupment hearing must be requested within 30 days of the date of the written notice
of overpayment and that failure to request the hearing within this 30-day time period shall
constitute a waiver of that right.3
ANALYSIS -- ISSUE 1
The Office notified appellant of its preliminary determination that he received an
overpayment of compensation in a letter dated November 13, 2007. It informed him that he
could request a telephone conference, a prerecoupment hearing or a final decision based on the
written evidence within 30 days of the date of the letter. Appellant requested a prerecoupment
hearing by letter dated December 19, 2007. As his request was dated more than 30 days after the
Office’s notification of overpayment, it was untimely. Therefore under the regulations appellant
waived his right to a prerecoupment hearing.4 The Office determined that the issue could be
addressed by requesting reconsideration and submitting evidence not previously considered. The
Board finds that the Office properly denied his request for a prerecoupment hearing.
LEGAL PRECEDENT -- ISSUE 2
The schedule award provision of the Federal Employees’ Compensation Act5 provides
for compensation to employees sustaining permanent loss, or loss of use, of specified members
of the body. The Act, however, does not specify the manner in which the percentage loss of a
2

20 C.F.R. § 10.431.

3

20 C.F.R. § 10.432.

4

20 C.F.R. § 10.432.

5

5 U.S.C. §§ 8101-8193.

3

member shall be determined. The method used in making such determination is a matter which
results in the sound discretion of the Office. For consistent results and to ensure equal justice,
the Board has authorized the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The American Medical Association, Guides to the Evaluation of
Permanent Impairment, (5th ed. 2001) (A.M.A., Guides), has been adopted by the Office for
evaluating schedule losses and the Board has concurred in such adoption.6
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.7 Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at
each frequency are added up and averaged.8 The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss.9 The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
by five, then added to the greater loss and the total is divided by six to arrive at the amount of the
binaural hearing loss.10 The Board has concurred in the Office’s adoption of this standard for
evaluating hearing loss.11
ANALYSIS -- ISSUE 2
In reviewing appellant’s March 15, 2007 audiogram, the frequency levels recorded at
500, 1,000, 2,000 and 3,000 hertz for the right ear reveal decibel losses of 20, 15, 20 and 45,
respectively, for a total of 100 decibels. This amount, when divided by four, results in an
average hearing loss of 25 decibels. The average loss of 25 is reduced by 25 decibels to 0, which
is multiplied by 1.5 and represents a 0 percent ratable monaural hearing loss for the right ear.
Testing for the left ear at the frequency levels of 500, 1,000, 2,000 and 3,000 hertz revealed
decibel losses of 15, 15, 20 and 65 decibels respectively, for a total of 115 decibels. Utilizing the
above-noted formula, results in a six percent monaural hearing loss for the left ear. To calculate
the binaural loss, the lesser loss of zero percent is multiplied by five to total zero percent, which
is then added to the greater loss of six percent to total six percent, which is then divided by six to
reach one percent binaural impairment. Accordingly, appellant’s most recent audiogram
establishes a ratable binaural hearing loss of one percent.
Under the Act, the maximum award for binaural hearing loss is 200 weeks of
compensation. Since the binaural hearing loss in this case is one percent, appellant would be
entitled to one percent of 200 weeks or 2 weeks of compensation. Under the Act, the maximum
award for monaural hearing loss is 52 weeks of compensation. As the monaural hearing loss in
this case is six percent, appellant is entitled to six percent of 52 weeks or 3.12 weeks of
6

See 20 C.F.R. § 10.404; Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

7

A.M.A, Guides 250.

8

Id.

9

Id.

10

Id.

11

Reynaldo R. Lichtenberger, 52 ECAB 462 (2001).

4

compensation. Appellant is entitled to compensation for either binaural or monaural hearing
loss, which ever is greater. The Office, therefore, properly determined the number of weeks of
compensation, for which appellant is entitled under the schedule award.
LEGAL PRECEDENT -- ISSUE 3
When an overpayment has been made to an individual 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 the individual is entitled.12 When an overpayment has been made to an
individual who is not entitled to further payments, the individual shall refund to the Office the
amount of the overpayment as soon as the error is discovered or his or her attention is called to
same.13
ANALYSIS -- ISSUE 3
The issue is whether the Office correctly determined that an overpayment had been
created. On July 26, 2007 it erroneously granted appellant a schedule award for six percent
bilateral hearing loss. On October 23, 2007 the Office informed appellant that a mistake had
been made and the July 26, 2007 decision was vacated. On October 25, 2007 it correctly
determined that appellant was entitled to a schedule award for a six percent monaural hearing
loss, or 3.12 weeks in the amount of $2,206.06. The records reveal that appellant was
erroneously paid $20,100.99 during the period March 15 to September 29, 2007. The Office
subtracted the amount appellant was entitled to, $2,206.06, from the amount he received,
$20,100.99 to correctly determine an overpayment of $17,894.93.
LEGAL PRECEDENT -- ISSUE 4
When an overpayment has been made to an individual because of an error of fact or law,
the Office may consider waiving the overpayment only if the individual to whom it was made
was not at fault in accepting or creating the overpayment.14 If the Office finds that the recipient
of an overpayment was not at fault, repayment will still be required unless adjustment of benefits
or recovery of the overpayment would (1) defeat the purpose of the Act or (2) be against equity
and good conscience.15
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by the Office. This information is needed to
determine whether or not recovery of an overpayment would defeat the purpose of the Act or be

12

5 U.S.C. § 8129(a).

13

20 C.F.R. § 10.441(b).

14

Id. at § 10.433(a).

15

Id. at § 10.434.

5

against equity and good conscience.
repayment schedule, if necessary.16

This information will also be used to determine the

According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose
of the Act if recovery would cause hardship because the beneficiary needs substantially all of his
income (including compensation benefits) to meet current ordinary and necessary living
expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by
the Office from data provided by the Bureau of Labor Statistics.17 An individual’s total income
includes any funds which may reasonably be considered available for his or her use, regardless
of the source. A spouse’s income will not be considered available to the individual, unless the
spouse was living in the household both at the time the overpayment was incurred, and at the
time waiver is considered.18
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship attempting to repay the debt; and when an individual, in reliance on
such payments or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.19
ANALYSIS -- ISSUE 4
The Office found that appellant was not at fault in the creation of the overpayment.
Appellant is not at fault as he accepted an incorrect payment because the Office erred in
calculating the schedule award.20 Although he was not at fault in creating the overpayment
appellant is still required to return the amount unless recovery of it would defeat the purpose of
the Act or be against equity and good conscience.
In its November 13, 2007 preliminary determination, the Office informed appellant that
he needed to complete the overpayment recovery questionnaire to determine the issue of waiver.
No information was received. In such a situation, the Office’s implementing federal regulations
provide that the failure to submit requested financial information within 30 days shall result in
the denial of waiver.21 For this reason, the Office properly denied waiver and directed recovery
of the overpayment.

16

Id. at § 10.438(a).

17

20 C.F.R. § 10.436, Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment
Actions, Chapter 6.200.6(a) (October 2004).
18

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6(a)(2) (October 2004).
19

20 C.F.R. § 10.437.

20

20 C.F.R. § 10.435(b)(2).

21

20 C.F.R. § 10.438(b).

6

CONCLUSION
The Board finds that the Office properly denied appellant’s request for a prerecoupment
hearing on the grounds that the request was untimely. The Board finds that appellant has a six
percent monaural hearing loss in the left ear. The Board also finds that the Office properly
determined the fact and amount of an overpayment of $17,894.93, and properly denied waiver.
ORDER
IT IS HEREBY ORDERED THAT the February 11 and January 14, 2008 and
October 25, 2007 decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 24, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


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

)
)
)
)
)
)
)
)
)

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

Docket No. 08-822
Issued: September 22, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 24, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ February 28 and December 11, 2007 merit decisions concerning the
termination of his 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 the Office met its burden of proof to terminate appellant’s
compensation effective February 28, 2007 on the grounds that he had no residuals of his
September 13, 1986 employment injury after that date.
FACTUAL HISTORY
The Office accepted that on September 13, 1986 appellant, then a 37-year-old
housekeeping aide, sustained a low back strain due to putting 60-pound bags into a cart at work.1
1

Appellant was working 20 hours per week at the time of his injury.

He stopped work for various periods and the Office paid disability compensation. Appellant
stopped work on July 1, 1987 and did not work again except for the period July 23 to 25, 1988.2
In an April 29, 1996 decision, the Office reduced appellant’s compensation to reflect that
he had the ability to earn wages as a security guard for 20 hours per week. In a February 18,
1997 decision, an Office hearing representative affirmed the Office’s April 29, 1996 decision.
In the late 1990s, appellant began to be treated by Dr. Clarence J. Louis, a Board-certified
neurologist. In numerous reports dated through late 2003, Dr. Louis detailed his treatment of
appellant and provided such diagnoses as chronic low back pain and chronic neck pain. In a
July 18, 2005 report, Dr. Richard T. Sheridan, a Board-certified orthopedic surgeon, who served
as an Office referral physician, indicated that appellant had no abnormal orthopedic findings and
therefore had no orthopedic diagnoses.
The Office determined that there was a conflict in the medical evidence and referred
appellant to Dr. John Wolf, a Board-certified orthopedic surgeon, for an impartial medical
examination and opinion on whether he continued to have residuals of his September 13, 1986
employment injury.3 In a May 25, 2006 report, Dr. Wolf determined that appellant had no
objective orthopedic abnormalities and therefore had no orthopedic diagnoses. The Office
subsequently determined that referral to an impartial medical specialist was inappropriate as
there was no conflict in the medical evidence at the time of the referral.4
In several reports dated between January 2006 and January 2007, Dr. Mohammad R.
Khan, an attending Board-certified internist, indicated that appellant complained of low back
pain. He diagnosed disc herniation and provided appellant with pain medication.
In October 2006, the Office referred appellant to Dr. Gregory Fisher, a Board-certified
orthopedic surgeon, for an opinion on whether he continued to have residuals of his
September 13, 1986 low back strain. On November 24, 2006 Dr. Fisher detailed appellant’s
medical history including his September 13, 1986 injury and subsequent treatment for low back
pain. He indicated that on examination appellant was nontender over the sacroiliac joint and
exhibited no muscle atrophy or spasms in the lumbosacral area. Appellant had 5/5 strength and
normal sensation in his lower extremities and did not exhibit any pain on straight leg raising.
2

The findings of July 5, 1988 x-rays of appellant’s lumbosacral spine showed normal results with intact vertebral
heights and disc spaces. The findings of July 26, 1988 computerized tomography (CT) scan testing revealed diffuse
posterior disc bulging at L3-4 and L4-5 with a shallow spinal canal. Magnetic resonance imaging scan from
September 10, 1991 showed mild central stenosis between L3 and S1 without significant compression of the thecal
sac or disc herniation.
3

Section 8123(a) of the Federal Employees’ Compensation Act provides in pertinent part: “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 U.S.C. § 8123(a). When
there are opposing reports of virtually equal weight and rationale, the case must be referred to an impartial medical
specialist, pursuant to section 8123(a) of the Act, to resolve the conflict in the medical evidence. William C. Bush,
40 ECAB 1064, 1975 (1989).
4

An Office claims examiner indicated that no conflict in the medical evidence was clearly identified between the
older reports of Dr. Louis, which were last produced in late 2003 and the July 18, 2005 report of Dr. Sheridan.

2

Dr. Fisher concluded that appellant did not have any residuals of his September 13, 1986 low
back strain and indicated that this opinion was based on the fact that he did not have any
objective signs of such an injury.5 He stated that appellant’s low back strain was of such a nature
that it would have resolved within two or three months of September 13, 1986.
In a January 23, 2007 letter, the Office advised appellant of its proposed termination of
his compensation based on the opinion of Dr. Fisher. It provided appellant 30 days to submit
additional evidence if he felt the termination was unwarranted. In a January 26, 2007 letter to
the Office, Dr. Khan indicated that attached reports showed that appellant’s claim should be
accepted for disc displacement without myelopathy of the lumbar spine. He attached his reports
which had previously been submitted to the Office.
In a February 28, 2007 decision, the Office terminated appellant’s compensation effective
February 28, 2007 on the grounds that he had no residuals of his September 13, 1986
employment injury after that date. It determined that the well-rationalized opinion of Dr. Fisher
showed that appellant no longer had residuals of his September 13, 1986 employment injury.
The Office found that Dr. Kahn did not provide medical rationale explaining how appellant
sustained a condition more serious than a low back strain on September 13, 1986.6
Appellant submitted a March 1, 2007 report in which Dr. Khan indicated that he
complained of back pain radiating into both legs when he first saw him in December 2005.
Dr. Khan indicated that a July 26, 1988 CT scan showed bulging at L3-4 and L4-5 with a
shallow spinal canal. He stated, “Considering the patient’s chronic back pain, combined with
radiation of his pain to his legs, which is not relieved by pain medication, I believe the patient
now has disc herniation in his lumbar spine area, in addition to his allowed diagnosis of
lumbosacral sprain.
Appellant requested a review of the written record. In a December 11, 2007 decision, an
Office hearing representative affirmed the Office’s February 28, 2007 decision.
LEGAL PRECEDENT
Under the Act,7 once the Office has accepted a claim it has the burden of justifying
termination or modification of compensation benefits.8 The Office may not terminate
compensation without establishing that the disability ceased or that it was no longer related to the
employment.9 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.10
5

Dr. Fisher also noted that Dr. Wolf and Dr. Sheridan did not find any objective signs of a low back strain.

6

The Office terminated appellant’s compensation for both wage loss and medical benefits.

7

5 U.S.C. §§ 8101-8193.

8

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

9

Id.

10

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

3

ANALYSIS
The Office accepted that on September 13, 1986 appellant sustained a low back strain
due to putting bags into a cart at work. It terminated appellant’s compensation effective
February 28, 2007 on the grounds that he had no residuals of his September 13, 1986
employment injury after that date. The Office based its termination on the opinion of Dr. Fisher,
a Board-certified orthopedic surgeon, who served as an Office referral physician.
The Board finds that the weight of the medical evidence is represented by the thorough,
well-rationalized opinion of Dr. Fisher. The November 24, 2006 report of Dr. Fisher establishes
that appellant had no residuals of his September 13, 1986 employment injury after
February 28, 2007.
On November 24, 2006 Dr. Fisher detailed appellant’s medical history including his
September 13, 1986 injury and subsequent treatment for low back pain. He indicated that on
examination appellant was nontender over the sacroiliac joint and exhibited no muscle atrophy or
spasms in the lumbosacral area. Appellant had 5/5 strength and normal sensation in his lower
extremities and did not exhibit any pain on straight leg raising. Dr. Fisher concluded that
appellant did not have any residuals of his September 13, 1986 low back strain.
The Board has carefully reviewed the opinion of Dr. Fisher and notes that it has
reliability, probative value and convincing quality with respect to its conclusions regarding the
relevant issue of the present case. Dr. Fisher’s opinion is based on a proper factual and medical
history in that he had the benefit of an accurate and up-to-date statement of accepted facts,
provided a thorough factual and medical history and accurately summarized the relevant medical
evidence.11 He explained that his opinion that appellant ceased to have residuals of his
September 13, 1986 low back strain was based on the fact that he did not have any objective
signs of such an injury. Dr. Fisher noted that other physicians also failed to find any objective
signs of a low back strain. He indicated that appellant’s low back strain was of such a nature that
it would have resolved within two or three months of September 13, 1986.12
Appellant submitted reports from early 2007 in which Dr. Khan, an attending internist
indicated that his claim should be accepted for a disc herniation. However, Dr. Khan’s reports
do not show that appellant sustained a condition more serious than a low back strain on
September 13, 1986. He indicated that appellant complained of pain radiating from his back to
his legs when he first saw him in December 2005 and noted that diagnostic testing from almost
two years after the September 13, 1986 injury showed bulging lumbar discs. Dr. Khan did not
explain how the diagnostic findings from 1986 were relevant to appellant’s present condition or
disability. He did not provide a complete history of appellant’s medical condition and did not
11

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

12

The Board notes that Dr. Fisher’s report does not come into conflict with any reports of appellant’s attending
physicians. In several reports dated between January 2006 and January 2007, Dr. Khan, an attending Boardcertified internist, indicated that appellant complained of low back pain and diagnosed disc herniation. However, he
did not provide any opinion that appellant continued to have residuals of his September 13, 1986 injury. See supra
note 3 regarding the creation of conflicts in the medical evidence.

4

provide medical rationale explaining how the September 13, 1986 employment incident could
have caused a disc herniation or some other condition other than a low back strain.
For these reasons, the Office properly terminated appellant’s compensation effective
February 28, 2007 on the grounds that he had no residuals of his September 13, 1986
employment injury after that date.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation effective February 28, 2007 on the grounds that he had no residuals of his
September 13, 1986 employment injury after that date.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
December 11 and February 28, 2007 decisions are affirmed.
Issued: September 22, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.P., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, SOCIAL SECURITY
ADMINISTRATION, San Bernardino, CA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 09-1961
Issued: May 17, 2010

Case Submitted on the Record

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

JURISDICTION
On July 27, 2009 appellant filed a timely appeal from the July 15, 2009 nonmerit
decision of the Office of Workers’ Compensation Programs, which denied reconsideration of her
case. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review that
denial.
ISSUE
The issue is whether the Office properly denied appellant’s April 13, 2009 request for
reconsideration.
FACTUAL HISTORY
On June 1, 1998 appellant, then a 44-year-old legal assistant, filed a claim asserting that a
torn ligament in her right thumb was a result of her federal employment. The Office accepted
her claim for aggravation of osteoarthritis in the metacarpophalangeal joint of the right thumb

and authorized an arthrodesis of the thumb with bone graft. Appellant received benefits,
including a schedule award for a 17 percent permanent impairment of her right upper extremity.
The Office denied an increased schedule award on October 14, 2003.
In a decision dated May 19, 2006, the Office denied appellant’s claim that she sustained a
recurrence of disability on February 15, 2005 causally related to her accepted right thumb injury.
On June 30, 2006 it reviewed the merits of her case and denied modification of its prior decision.
The Board reviewed the matter and, on March 14, 2007, affirmed the Office’s decisions. The
Board found that the contemporaneous medical opinion evidence did not support that appellant
was disabled for work, and later medical opinion evidence supporting disability was not well
rationalized and appeared to rely on the unsubstantiated history appellant provided.1
On September 19, 2007 appellant requested reconsideration of the Office’s October 14,
2003 decision to deny an increased schedule award.
In a decision dated November 21, 2007, the Office denied her request as untimely. It
found appellant did not present clear evidence of error in the October 14, 2003 decision.
Appellant appealed to the Board but then requested the appeal be dismissed. On April 10, 2009
the Board granted her request and issued an order dismissing the appeal.2
On April 13, 2009 appellant requested reconsideration and indicated she had new
evidence to submit. She later submitted CA-7 forms claiming compensation for wage loss from
March 28, 2005 to January 16, 2007, together with forms claiming a schedule award. On
May 27, 2009 appellant asked the Office to accept these forms as timely: “I am entitled to some
type of compensation for my supervisor failing to follow my doctor’s work restrictions, wrongful
termination, and being traumatized for the wrongful termination. I am looking into some type of
training to help me find another job.”
On June 3, 2009 the Office advised appellant that the periods claimed were previously
adjudicated and denied, and that the act of resending claims for prior periods did not afford her
additional appeal rights. “No further action will be taken on these claims.” With respect to the
claims for a schedule award, the Office separately advised appellant of the medical information
necessary to show an increased impairment.3
In a decision dated July 15, 2009, the Office denied appellant’s April 13, 2009 request for
reconsideration as untimely. It found that appellant did not present clear evidence of error.
On appeal, appellant does not agree with the Office’s decision.

1

Docket No. 06-1625 (issued March 14, 2007).

2

Docket No. 08-1509 (issued April 10, 2009).

3

As this aspect of appellant’s claim is in an interlocutory posture, it is not before the Board on this appeal. See
20 C.F.R. § 501.2(c)(2).

2

LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act vests the Office with
discretionary authority to determine whether it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”4
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607
provides that an application for reconsideration must be sent within one year of the date of the
Office decision for which review is sought. The Office will consider an untimely application
only if the application demonstrates clear evidence of error on the part of the Office in its most
recent merit decision. The application must establish, on its face, that such decision was
erroneous.5
The term “clear evidence of error” is intended to represent a difficult standard.6 If clear
evidence of error has not been presented, the Office should deny the application by letter
decision, which includes a brief evaluation of the evidence submitted and a finding made that
clear evidence of error has not been shown.7
The one-year period for requesting reconsideration begins on the date of the original
decision. However, a right to reconsideration within one year accompanies any subsequent merit
decision on the issues. This includes any hearing or review of the written record decision, any
denial of modification following reconsideration, any merit decision by the Board and any merit
decision following action by the Board, but does not include prerecoupment hearing decisions.8
ANALYSIS
The only issue on this appeal is whether the Office properly denied appellant’s April 13,
2009 request for reconsideration. The Office denied it on July 15, 2009. Appellant filed a timely
appeal of that decision. There is no other decision before the Board. The Board has no
jurisdiction to review any decision denying appellant’s claim that she sustained a recurrence of
disability or any claim of wage loss for any specific period. The Board has no jurisdiction to
4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.607.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3.c (January 2004).

7

Id. at Chapter 2.1602.3.d(1).

8

Id. at Chapter 2.1602.3.b(1) (January 2004).

3

review appellant’s complaints that her supervisor failed to follow her doctor’s work restrictions,
that she was wrongfully terminated or that she was traumatized by a wrongful termination. The
only issue the Board may decide is whether the Office properly denied her April 13, 2009
request for reconsideration.
The most recent decision on the merits of her case was the Board’s March 14, 2007
decision, which affirmed the Office’s May 19 and June 30, 2006 decisions denying her claim
that she sustained a recurrence of disability on or about February 15, 2005. Appellant had one
year from the date of the Board’s decision, or until March 14, 2008, to ask the Office to
reconsider her recurrence claim. Her April 13, 2009 request for reconsideration is therefore
untimely.
Because appellant made an untimely request for reconsideration, her request must show,
on its face, clear evidence of error in the Office’s decision. Her April 13, 2009 correspondence
simply requested reconsideration. Appellant made no argument for error in any prior Office
decision and she submitted no evidence to clearly show error by the Office in denying her
recurrence claim. Because her untimely request on April 13, 2009 does not, on its face, establish
error in any previous merit decision by the Office, the Board finds that the Office properly
denied her request. Appellant is not entitled as a matter of right to a reopening and merit review
of her case. The Board will affirm the Office’s July 15, 2009 decision.
CONCLUSION
The Board finds that the Office properly denied appellant’s April 13, 2009 request for
reconsideration. The request was untimely and failed to present clear evidence of error.

4

ORDER
IT IS HEREBY ORDERED THAT the July 15, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 17, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS, VA
MEDICAL CENTER, Durham, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 22-0103
Issued: March 21, 2022

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 October 29, 2021 appellant, through counsel, filed a timely appeal from a
September 21, 2021 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 has established an injury in the performance of duty as
alleged.

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.

FACTUAL HISTORY
On December 18, 2020 appellant, then a 38-year-old food service worker, filed an
occupational disease claim (Form CA-2) alleging that he experienced difficulties with his hand
and wrist due to factors of his federal employment including repeatedly wiping down food carts.
He attributed his condition to “systemic infection, repeated stress or strain or conditions of the
work environment.” Appellant noted that he first became aware of his condition and its
relationship to his federal employment on January 20, 2020.3
In a development letter dated December 23, 2020, OWCP informed appellant of the
deficiencies of his claim. It advised him of the type of factual and medical evidence needed and
provided a questionnaire for his completion. By separate development letter of even date, OWCP
also requested additional information from the employing establishment, including a description
of the repetitive tasks that appellant performed as part of his work duties. It afforded both parties
30 days to respond.
In an undated response, appellant related that his date of injury was September 25, 2019,
even though he was not diagnosed until January 20, 2020. He advised that on September 25, 2019
he had sustained pain and numbness in his right hand that was subsequently diagn osed as carpal
tunnel syndrome. Appellant advised that he experienced the symptoms of carpal tunnel syndrome
when wiping down food carts and noted that he had worked 20 years for the employing
establishment.
By decision dated March 12, 2021, OWCP denied appellant’s occupational disease claim.
It found that he had not submitted sufficient evidence to establish that the work factors occurred
as alleged and further had not submitted any medical evidence containing a diagnosis in connection
with the claimed work events.
On March 22, 2021 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
Thereafter, OWCP received a March 13, 2020 report from Dr. Timothy Andrews Ashley,
Board-certified in internal medicine, who evaluated appellant for pain and weakness of the right
hand and noted that an orthopedist had diagnosed carpal tunnel syndrome by clinical examination
and electromyogram (EMG). He related, “Carpal tunnel syndrome is frequently a result of
repetitive gripping or vibratory movements, and in this case is apparently related to his work. The
injury [on] September 25, 2019 appears to have triggered this pain episode.”
An EMG and nerve conduction velocity (NCV) study performed on January 8, 2020 for
Dr. Emeka Nwoko Okechukwu, a Board-certified orthopedic surgeon, showed mild-to-moderate
right carpal tunnel syndrome.
A telephonic hearing was held on July 14, 2021. Appellant’s representative advised that
he had a prior claim accepted for a right-hand contusion and when his condition failed to improve
3

OWCP assigned the present claim OWCP File No. xxxxxx951. Appellant has a prior claim under OWCP File
No. xxxxxx590, which OWCP accepted for a September 25, 2019 contusion to his right hand. The employing
establishment removed appellant from employment effective November 13, 2019.

2

he had an EMG, which demonstrated carpal tunnel syndrome. Appellant explained that his work
duties included daily cleaning of tool carts inside and out. He also performed general cleaning
duties, including wiping off sinks and removing food from the trays on a conveyor belt. Appellant
additionally had performed meal preparation prior to his hand contusion. He returned to work on
December 5, 2019 after his hand contusion, but was told that he had been terminated from
employment due to misconduct for failing to follow leave procedures. OWCP’s hearing
representative requested that appellant provide a written statement in response to the development
letter responding to the specific questions and providing a description of his work duties. She
further requested supporting medical evidence.
By decision dated September 21, 2021, OWCP’s hearing representative affirmed the
March 12, 2021 decision. She found that OWCP should double the current claim with other claims
involving appellant’s right hand.
LEGAL PRECEDENT
An employee seeking benefits under FECA 4 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation
period of FECA, 5 that an injury was sustained while in the performance of duty as alleged, and
that any disability or specific condition for which compensation is claimed is causally related to
the employment injury. 6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational diseas e.7
In an occupational disease claim, appellant’s burden of proof requires submission of the
following: (1) a factual statement identifying employment factors alleged to have caused or
contributed to the presence or occurrence of the disease or condition; (2) medical evidence
establishing the presence or existence of the disease or condition for which compensation is
claimed; and (3) medical evidence establishing that the diagnosed condition is causally related to
the employment factors identified by the employee.8
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.9 The opinion of the physician must be based
on a complete factual and medical background of the claimant, must be one of reasonable medical

4

Supra note 2.

5

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 59 ECAB 382 (2008).

9

A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388 (2008).

3

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
ANALYSIS
The Board finds that appellant has established that the claimed employment factors
occurred as alleged..
Appellant described the work factors to which he attributed his condition during the
hearing. He related that he cleaned tool carts, wiped off sinks, and removed food from trays on a
conveyor belt. The employing establishment has not disputed that he performed the described
duties. An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong and persuasive evidence.11 The
Board thus finds that appellant has met his burden of proof to establish that he cleaned carts daily,
wiped off sinks, and removed food from trays on a conveyor belt as part of his employment duties.
As appellant has established the identified employment factors, OWCP must base its
decision on an analysis of the medical evidence. OWCP, in its September 21, 2021 decision,
reviewed the medical evidence of record and found that he had not submitted medical evidence
sufficient to show a medical condition causally related to the identified employment factors.
In a March 13, 2020 report, Dr. Ashley discussed appellant’s complaints of right hand pain
and weakness and indicated that an orthopedist had diagnosed carpal tunnel syndrome. He related
that “Carpal tunnel syndrome is frequently a result of repetitive gripping or vibratory movements,
and in this case is apparently related to his work. The injury [on] September 25, 2019 appears to
have triggered this pain episode.” His opinion that carpal tunnel syndrome is frequently a result
from repetitive work duties and that an injury on September 24, 2019 appeared to have caused
appellant’s pain is speculative in nature and, thus, of diminished probative value. 12 Consequently,
Dr. Ashley’s report is insufficient to meet his burden of proof. 13
Appellant further submitted the results of electrodiagnostic testing. The Board has held
that diagnostic reports, standing alone, lack probative value on the issue of causal relationship as
they do not provide an opinion as to whether the accepted employment incident caused a diagnosed
condition.14 This evidence, therefore, is also insufficient to establish appellant’s claim.
As the medical evidence of record is insufficient to establish a medical condition causally
related the accepted employment injury, the Board finds that appellant has not met his burden of
proof.

10

M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008).

11

See R.W., Docket No. 19-0339 (issued July 12, 2019).

12

See C.A., Docket No. 21-0601 (issued November 15, 2021); L.F., Docket No. 20-1021 (issued July 30, 2021).

13

Id.

14

S.W., Docket No. 21-1105 (issued December 17, 2021); W.L., Docket No. 20-1589 (issued August 26, 2021).

4

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 has established that the claimed employment factors
occurred as alleged. The Board further finds, however, that appellant has not met his burden of
proof to establish a hand and/or wrist condition causally related to factors of his federal
employment.
ORDER
IT IS HEREBY ORDERED THAT the September 21, 2021 decision of Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: March 21, 2022
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

5