United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.U., Appellant
and
U.S. POSTAL SERVICE, FORT HAMILTON
STATION, Brooklyn, NY, Employer
__________________________________________

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Appearances:
Daniel M. Goodkin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1506
Issued: October 11, 2018

Case Submitted on the Record

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

JURISDICTION
On June 27, 2017 appellant, through counsel, filed a timely appeal from a June 21, 2017
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180
days has elapsed from the last merit decision, dated June 22, 2006, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of the claim.

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
On appeal counsel asserts that OWCP committed a clear error in its December 1, 2005
decision. He alleged that OWCP failed to follow sections 2.814.4.d(1)(e) and 2.814.5 of its
procedures prior to terminating appellant’s wage-loss compensation in accordance with section
8106(c)(2) of FECA.
FACTUAL HISTORY
On February 8, 2001 appellant, then a 35-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that he injured his lower back when carrying mail in winter conditions.
He stopped work on February 12, 2001. OWCP accepted lumbar sprain, and appellant was placed
on the periodic compensation roll. Appellant did not return to work.
Appellant came under the care of Dr. C.S. Bhupathi, a Board-certified orthopedic surgeon,
who diagnosed lumbar facet arthritis that caused radiculitis and foraminal narrowing, and
osteoarthritis of both hips, more severe on the left. He began pain management on
January 18, 2002.
On March 3, 2003 OWCP referred appellant for second opinion evaluations. In a
March 25, 2003 report, Dr. Gary Korenman, a Board-certified neurologist and OWCP referral
physician, noted the history of injury and provided neurologic examination findings. He advised
that appellant had no evidence of ongoing neurologic dysfunction and could return to work.
Also on March 25, 2003 Dr. Lester Lieberman, a Board-certified orthopedic surgeon and
also an OWCP referral physician, described the February 5, 2001 employment injury, and noted
that appellant had a 1996 back injury from a motor vehicle accident. Following examination he
noted loss of back flexion and a negative straight leg raising bilaterally. Dr. Lieberman advised
that appellant had a lumbar sprain secondary to the employment injury and could return to his
regular work duties on a full-time basis, with an initial weight restriction of 40 pounds. He opined
that appellant’s hip condition was not due to the February 5, 2001 employment injury.
In a report dated July 9, 2003, Dr. Bhupathi described appellant’s medical care. He
diagnosed degenerative disc disease of the lumbosacral spine and osteoarthritis of both hips,
greater on the left. Dr. Bhupathi indicated that appellant’s hip pain continued and advised that he
remained totally disabled.
OWCP found that a conflict in medical opinion had been created regarding appellant’s
employment-related diagnoses and his ability to work, and referred him to Dr. Stanley Soren, a
Board-certified orthopedic surgeon, for an impartial evaluation. In a July 29, 2004 report,
Dr. Soren described the February 5, 2001 employment injury and appellant’s complaints of low
back pain with spasms, right-sided groin pain, and left hip pain. He reviewed the statement of
accepted facts and the medical record and provided physical examination findings. Dr. Soren
diagnosed lumbosacral sprain, right groin adductor sprain, mild lumbar facet arthritis, degenerative
disc disease and retrolisthesis at S1 on L5, and right-sided L4-5 radiculopathy and paraspinal

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denervation as shown on a January 10, 2002 electrodiagnostic study.3 He advised that the
lumbosacral sprain and groin sprain were causally related to the February 5, 2001 employment
injury, and that the facet arthritis, lumbar disc disease, and hip conditions were not employment
related. Dr. Soren concluded that appellant could return to light duty with restrictions on climbing
and a 30-pound lifting restriction.
On April 19, 2005 the employing establishment offered appellant a modified position. The
duties were casing mail for up to eight hours daily, and updating route books and case labels for
one hour each. Twisting, bending, stooping, pushing, pulling, squatting, and kneeling were limited
to two hours daily with no climbing. A 30-pound weight restriction was crossed out on the job
offer. Appellant refused the offered position on May 9, 2005, stating that he remained totally
disabled.
In an October 11, 2005 letter, OWCP advised appellant that the position offered was
suitable. Appellant was notified that, if he did not report to work or failed to demonstrate that the
failure was justified, pursuant to section 8106(c)(2) of FECA, his right to compensation for wage
loss or a schedule award would be terminated. OWCP advised appellant that he should promptly
notify the employing establishment and OWCP of his intentions and, if he did not report for work,
provide reasons in justification of this failure. Appellant was given 30 days to respond.
Appellant did not respond to the 30-day letter. Additional medical evidence from
Dr. Bhupathi was received. This included reports dated September 15, 2005 in which he noted
that appellant had an acute attack of lower back pain and had severely limited trunk motion.
Dr. Bhupathi recommended restricted activity and advised that appellant remained totally
disabled, noting that he was awaiting authorization for right hip surgery. In a report dated
November 1, 2005, he noted his review of Dr. Soren’s report. Dr. Bhupathi opined that, in view
of appellant’s recurrent radiating low back pain, he would not be able to perform such job duties
on a regular basis and recommended that appellant be trained in a less strenuous job. He advised
that appellant remained totally disabled.
By decision dated December 1, 2005, OWCP terminated appellant’s wage-loss
compensation, effective November 27, 2005, because he refused an offer of suitable work. It noted
that the weight of the medical evidence rested with the opinion of Dr. Soren who provided an
impartial medical examination.
Appellant timely requested an oral hearing with OWCP’s Branch of Hearings and Review
and submitted additional medical evidence. At the hearing, where appellant appeared pro se, he
testified that, after receiving the job offer, he tried to get clarification, and indicated that he could
not perform the duties due to pain and medication.
By decision dated June 22, 2006, an OWCP hearing representative discussed the medical
evidence of record including the medical note form Dr. Bhupathi dated November 1, 2005 where
he opined that appellant could not perform the job duties on a regular basis and recommended that
he be trained on a less strenuous job. He found the weight of the evidence rested with the opinion
of Dr. Soren, the referee physician, who advised that appellant was capable of modified duty. The
hearing representative noted that appellant did not respond to OWCP’s October 11, 2005 letter
3

A copy of the study is found in the case record.

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within 30 days and concluded that he refused suitable employment and that the sanctions under
section 8106(c) of FECA were appropriate.
On October 26, 2016 appellant, through counsel, requested reconsideration.4 Counsel,
citing the Board case R.G.,5 asserted that as appellant submitted additional evidence, OWCP’s
termination of benefits was procedurally flawed.
In a June 21, 2017 decision, OWCP found that, as appellant’s reconsideration request was
untimely filed and he did not present clear evidence of error, his request for reconsideration was
denied.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, an
application for reconsideration must be received by OWCP within one year of the date of OWCP’s
decision for which review is sought.6 When determining the one-year period for requesting
reconsideration, the last day of the period should be included unless it is a Saturday, Sunday, or a
federal holiday.7 Timeliness is determined by the document receipt date, i.e., the “received date”
in OWCP’s Integrated Federal Workers’ Compensation System.8 The Board has found that the
imposition of the one-year limitation does not constitute an abuse of discretionary authority
granted OWCP under section 8128 of FECA.9
OWCP may not deny an application for review solely on the grounds that the application
was not timely filed. When an application for review is untimely filed, it must nevertheless
undertake a limited review to determine whether the application establishes clear evidence of
error.10 OWCP’s regulations and procedures provide that OWCP will reopen a claimant’s case for
merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if
the claimant’s application for review shows clear evidence of error on the part of OWCP.11
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. The evidence must be positive, precise, and explicit, and
must manifest on its face that OWCP committed an error. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to demonstrate clear
evidence of error. It is not enough to merely show that the evidence could be construed so as to
4

On October 19, 2016 Daniel M. Goodkin, Esq. began representing appellant.

5

Docket No. 15-0492 (issued November 16, 2015).

6

20 C.F.R. § 10.607(a).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016); see
also M.A., Docket No. 13-1783 (issued January 2, 2014).
8

Federal (FECA) Procedure Manual, id. at Chapter 2.1602.4(b) (February 2016).

9

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

10

See 20 C.F.R. § 607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

11

20 C.F.R. § 607(b); Federal (FECA) Procedure Manual, supra note 7 at Chapter 2.1602.5(a) (February 2016).

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produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must be of sufficient probative value to prima facie shift the
weight of the evidence in favor of the claimant and raise a substantial question as to the correctness
of OWCP’s decision.12
OWCP procedures note that the term “clear evidence of error” is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP made
an error (for example, proof that a schedule award was miscalculated). Evidence such as a detailed,
well-rationalized medical report which, if submitted before the denial was issued, would have
created a conflict in medical opinion requiring further development, is not clear evidence of error.13
The Board makes an independent determination of whether a claimant has demonstrated clear
evidence of error on the part of OWCP.14
ANALYSIS
The only decision before the Board in this appeal is the June 21, 2017 decision in which
OWCP denied appellant’s request for reconsideration because the request was untimely filed and
failed to demonstrate clear evidence of error. On October 26, 2016 appellant requested
reconsideration of the June 22, 2006 hearing representative’s decision, which affirmed the
December 1, 2005 termination of his wage-loss compensation under section 8106(c) of FECA.
The Board finds that as appellant’s reconsideration request was received more than one year after
the June 6, 2006 merit decision, OWCP properly determined that it was untimely.15 Consequently
appellant must demonstrate clear evidence of error on the part of OWCP.
The Board finds that appellant has demonstrated clear evidence of error. The Board first
notes that the case cited by counsel, R.G.,16 was a decision on the merits of appellant’s claim and
not an untimely request for reconsideration to be considered by the Board under the difficult clear
evidence of error standard.17
While sections 2.814.4.d(1)(e) and 2.814.5 of OWCP’s procedures were issued in
June 2013, seven years after the last merit issue in this case, the procedures in effect in
December 2005, when OWCP terminated appellant’s wage-loss compensation for refusal of
suitable employment under section 8102(c) of FECA were similar. Both sets of procedures instruct

12

Robert G. Burns, 57 ECAB 657 (2006).

13

Federal (FECA) Procedure Manual, supra note 7 at Chapter 2.1602.5(a) (February 2016); J.S., Docket No.
16-1240 (issued December 1, 2016).
14

See D.S., Docket No. 17-0407 (issued May 24, 2017).

15

20 C.F.R. § 10.607(a) (2011).

16

Supra note 5.

17

Supra note 13.

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the claimant to provide a written explanation of the reasons for refusing the employment.18 Both
also include language that if the claimant submits evidence and/or reasons for refusing the offered
position, the claims examiner must carefully evaluate the claimant’s response and determine
whether the claimant’s reasons for refusing are valid.19 Both also indicate that, if the claimant’s
refusal of the offered job is not deemed justified, OWCP must advise the claimant and allow 15
additional days for him or her to accept the position.20
In the case at hand, while appellant did not reply in writing to OWCP’s October 11, 2005
letter advising him that he had 30 days to respond, however, he did submit additional medical
evidence from Dr. Bhupathi, an attending orthopedic surgeon which was referenced in the decision
of June 26, 2006.
As noted above, both the 1997 and 2013 OWCP procedures specifically provide that, if the
claimant submits evidence and/or reasons for refusing the offered position, the claims examiner
must carefully evaluate the claimant’s response and determine whether the claimant’s reasons for
refusing are valid.21 Both also provide that, if OWCP determines that the claimant’s refusal of the
offered job is not deemed justified, OWCP must advise the claimant and allow 15 additional days
for him or her to accept the position.22 In this case, OWCP did not issue a 15-day letter.
Certain procedural safeguards are necessary to allow an employee to have a final opportunity
to accept a position offered by an employing establishment before OWCP may terminate
compensation based on refusal of a suitable position. As in the case Maggie L. Moore,23 in the case
at hand OWCP did not afford appellant an opportunity to accept the position after finding his
reasons unacceptable. The clear mandate of Maggie L. Moore was that claimant’s receive notice
of the intentions of OWCP and be given a reasonable period of time to make the requisite decision
to either accept or reject an offer of suitable employment.24 The Board finds that, as OWCP denied
appellant an additional 15-day opportunity to accept an offer of suitable work, this raised a
substantial question as to the correctness of OWCP’s December 1, 2005 decision and demonstrates
clear evidence of error.25

18

Federal (FECA) Procedure Manual, supra note 7. Compare section 2.814.4.c(5) (July 1997) with section
2.814.4(c) (June 2013).
19

Section 2.814.5 (July 1997) and (June 2013).

20

Compare section 2.814.5.d(a) (July 1997) and section 2.814.5.e(3) (June 2013).

21

Section 2.814.5 (July 1997) and (June 2013).

22

Supra note 20; id.

23

42 ECAB 484, 488 (1991), reaff’d on recon., 43 ECAB 818, 824 (1992).

24

Id.

25
T.J., Docket No 11-1197 (issued January 6, 2012).
April 6, 2017).

6

See generally A.D., Docket No. 16-1366 (issued

CONCLUSION
The Board finds that appellant has demonstrated clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the June 9, 2017 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: October 11, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Orleans, LA, Employer
__________________________________________

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

Docket No. 19-1946
Issued: July 13, 2020

Case Submitted on the Record

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

JURISDICTION
On September 23, 2019 appellant filed a timely appeal from an August 30, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly found that appellant received an overpayment
of compensation in the amount of $49,846.55, for which he was not at fault, as he concurrently
received Social Security Administration (SSA) age-related retirement benefits and FECA wageloss compensation benefits for the period September 1, 2016 through July 20, 2019 without proper
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal and OWCP received additional evidence
following the August 30, 2019 decision. 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.

offset; (2) whether OWCP properly denied waiver of recovery of the overpayment; and
(3) whether OWCP properly required recovery of the overpayment by deducting $174.50 every 28
days from appellant’s continuing compensation payments.
FACTUAL HISTORY
On February 9, 2015 appellant, then a 63-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on February 4, 2015 he developed sharp neck and back pain while
pushing a cart. OWCP accepted the claim for neck sprain, and subsequently expanded acceptance
of the claim to include cervical stenosis and cervicothoracic stenosis. It placed appellant on the
supplemental rolls commencing March 27, 2015 and on the periodic rolls as of May 31, 2015.
On February 1, 2017 OWCP provided SSA with a Federal Employees Retirement System
(FERS)/SSA dual benefits calculation form. On June 3, 2019 it received the FER/SSA benefits
calculations transmittal, dated May 29, 2019 in which SSA reported appellant’s SSA benefits with
a FERS offset and without a FERS offset from September 2016 through December 2018.
Beginning September 2016, the SSA rate with FERS was $1,804.80 and without FERS was
$397.80. Beginning December 2016, the SSA rate with FERS was $1,810.00 and without FERS
was $399.00. Beginning December 2017, the SSA rate with FERS was $1,847.00 and without
FERS was $407.00. Beginning December 2018, the SSA rate with FERS was $1,898.00 and
without FERS was $418.00.
In a FERS offset calculation worksheet dated July 25, 2019, OWCP calculated that from
September 1 through November 30 2016 appellant received an overpayment in the amount of
$4,221.00; from December 1, 2016 through November 30, 2017 an overpayment in the amount of
$16,978.52; for the period December 1, 2017 through November 30, 2018 an overpayment in the
amount of $17,327.47; and for the period December 1, 2018 through July 20, 2019 an overpayment
in the amount of $11,319.56, for a total overpayment in the amount of $49,846.55.
On July 30, 2019 OWCP issued a preliminary determination that appellant was overpaid
compensation in the amount of $49,846.55 for the period September 1, 2016 through July 20, 2019
because the SSA/FERS offset was not applied to payments for this period. It determined that he
was without fault in the creation of the overpayment because he relied on misinformation given in
writing by OWCP as to the interpretation of FECA or its regulations, there was documentation to
substantiate that the misinformation was communicated to him, and there was no evidence in the
case file to demonstrate that he knew or should have known the proper course of action to be
followed. OWCP requested that appellant submit a completed overpayment action request and
overpayment recovery questionnaire (Form OWCP-20) to determine a fair repayment method, and
advised him that he could request a waiver of recovery of the overpayment. It requested that he
provide supporting 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
of recovery of the overpayment if he failed to furnish the requested financial information within
30 days. It further notified him that, within 30 days of the date of the letter, he could request a
telephone conference, a final decision based on the written evidence, or a prerecoupment hearing.
In a letter dated July 31, 2019, OWCP informed appellant that it would begin deducting
the portion of SSA benefits attributable to his federal service from his 28-day periodic
compensation.
2

By decision dated August 30, 2019, OWCP finalized its preliminary determination that
appellant had received an overpayment of compensation in the amount of $49,846.55 because the
SSA/FERS offset had not been applied to payments for the period September 1, 2016 through
July 29, 2019. It found that he was without fault in the creation of the overpayment, but denied
waiver of recovery of the overpayment because he had not completed and returned OWCP’s
overpayment questionnaire. OWCP concluded that there was no evidence to conclude that
recovery of the overpayment would either defeat the purpose of FECA or be against equity and
good conscience. It indicated that the overpayment would be recovered by withholding $174.50
from appellant’s continuing compensation benefit payments every 28 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) 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 his
or her federal employment.3 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.4 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.5
Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount
of compensation by the amount of any SSA age-based benefits that are attributable to federal
service of the employee.6 FECA Bulletin No. 97-09 provides that FECA benefits have to be
adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned as a
federal employee is part of the FERS retirement package, and the receipt of FECA benefits and
federal retirement concurrently is a prohibited dual benefit.7
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $49,846.55 as he concurrently received SSA age-related
retirement benefits and FECA wage-loss compensation for the period September 1, 2016 through
July 20, 2019.
As noted, a claimant cannot receive concurrent FECA compensation for wage-loss
compensation and SSA age-related retirement benefits attributable to federal service for the same

3

Supra note 1 at § 8102(a).

4

Id. at § 8116.

5

Id. at § 8129(a).

6

20 C.F.R. § 10.421(d); see R.R., Docket No. 19-0104 (issued March 9, 2020); T.B., Docket No. 18-1449 (issued
March 19, 2019); L.J., 59 ECAB 264 (2007).
7

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

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period.8 The information provided by SSA accurately identified that appellant had received SSA
age-related retirement benefits that were attributable to his own federal service from September 1,
2016 through July 20, 2019. Thus, the record establishes that he received an overpayment of
FECA wage-loss compensation.9
To determine the amount of the overpayment, the portion of the SSA benefits that were
attributable to federal service must be calculated. The Board finds that OWCP properly
determined the amount of the 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 benefits attributed to his federal service needed to be offset against his FECA
compensation benefits. It calculated that the lack of offset from September 1, 2016 through
July 20, 2019 resulted in an overpayment total of $49,846.55.
The Board has reviewed OWCP’s calculations and finds that it properly determined that
appellant received prohibited dual benefits totaling $49,846.55, thus creating an overpayment of
compensation in that amount for the period September 1, 2016 through July 20, 2019.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA provides that “Adjustment or recovery [of an overpayment] by
the United States may not be made when incorrect payment has been made to an individual who
is without fault and when adjustment or recovery would defeat the purpose of this subchapter or
would be against 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 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 overpayment.
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
In its preliminary determination dated July 30, 2019, OWCP clearly explained the
importance of providing the completed Form OWCP-20 overpayment recovery questionnaire and
8

Supra note 6; see also R.M., Docket No. 19-1570 (issued June 1, 2020); N.B., Docket No. 18-0795 (issued
January 4, 2019).
9

Id.

10

5 U.S.C. § 8129(b).

11

20 C.F.R. § 10.438.

12

Id. at § 10.436.

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supporting financial documentation, to support listed income and expenses. It advised appellant
that it would deny waiver of recovery of the overpayment if he failed to furnish the requested
financial information within 30 days. Appellant, however, did not submit a completed Form
OWCP-20 or submit financial information 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, which was necessary to determine his eligibility for waiver, the Board finds that OWCP
properly denied waiver of recovery of the overpayment.13
On appeal appellant asserts that requiring repayment of the overpayment would create a
financial hardship and is inequitable. As explained above, it was appellant’s responsibility to
provide a completed Form OWCP-20 with supporting financial information within 30 days, which
was explained in the preliminary overpayment determination that he received. Since he failed to
provide the requested information within 30 days, OWCP properly denied waiver of recovery of
the overpayment.
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP’s regulations14 provides that, when an overpayment has been
made to an individual who is entitled to further payments, the individual shall refund to OWCP
the amount of the overpayment as the error is discovered or his or her attention is called to the
same. If no refund is made, OWCP shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize any hardship.15
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$174.50 from appellant’s continuing compensation every 28 days.
OWCP provided appellant a Form OWCP-20 with its July 30, 2019 preliminary
determination. It afforded him the opportunity to provide appropriate financial information and
documentation to OWCP.16 Appellant did not complete the overpayment recovery questionnaire
or provide the necessary financial information to support his income and expenses prior to the final
August 30, 2019 overpayment decision. The overpaid individual is responsible for providing
information about income, expenses, and assets as specified by OWCP.17 When an individual fails
to provide requested financial information, OWCP should follow minimum collection guidelines
13

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

14

20 C.F.R. § 10.441(a).

15

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

16

Id. at § 10.438.

17

Id. at § 10.438(a); see M.S., Docket No. 18-0740 (issued February 4, 2019).

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designed to collect the debt promptly and in full.18 As appellant did not submit supporting financial
documentation to OWCP as requested, the Board finds that there is no evidence of record to
establish that OWCP erred in directing recovery of the $49,846.55 overpayment at the rate of
$174.50 every 28 days from his continuing compensation payments.19
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$49,846.55 for the period September 1, 2016 through July 20, 2019, for which he was not at fault,
as he concurrently received FECA benefits and SSA age-related retirement benefits without an
appropriate offset. The Board further finds that OWCP properly denied waiver of recovery of the
overpayment and properly required recovery of the overpayment by deducting $174.50 every 28
days from his continuing compensation payments.
ORDER
IT IS HEREBY ORDERED THAT the August 30, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 13, 2020
Washington, DC

Christopher J. Godfrey, Deputy 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

18

See A.S., Docket No. 19-0171 (issued June 12, 2019); Frederick Arters, 53 ECAB 397 (2002); Federal (FECA)
Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations, Chapter 6.400.3
(September 2018).
19

See E.K., Docket No. 18-0587 (issued October 1, 2018); S.B., Docket No. 16-1795 (issued March 2, 2017).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
U.S. POSTAL SERVICE, MAIN OFFICE
STATION, Greensboro, NC, Employer
__________________________________________

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

Docket No. 16-0537
Issued: August 18, 2016

Case Submitted on the Record

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

JURISDICTION
On January 29, 2016 appellant filed a timely appeal of an October 27, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has more than 19 percent permanent impairment of the
right second finger, for which he previously received a schedule award.
On appeal appellant contends that he is entitled to a greater schedule award.
FACTUAL HISTORY
On November 20, 2014 appellant, then a 49-year-old sales distribution associate, filed a
traumatic injury claim (Form CA-1) alleging that on that date he sustained a right middle finger
1

5 U.S.C. § 8101 et seq.

fracture when a dock plate caught his finger. He stopped work on November 20, 2014 and
returned on November 28, 2014, with restrictions. OWCP accepted the claim for right second
finger crush injury.
On June 15, 2015 Dr. Kevin R. Kuzma, a treating Board-certified orthopedic surgeon
completed an evaluation for permanent impairment form in which he found 19 percent right
second finger impairment. In an examination performed on June 15, 2015, he reported “intact
sensation and capillary refill in all finger tips;” no tenderness, erythema, ecchymosis, or
swelling, good finger range of motion; and some decreased sensation in the middle finger.
Appellant filed claims for a schedule award (Form CA-7).
On September 6, 2015 Dr. Kuzma indicated that maximum medical improvement (MMI)
had been reached on June 15, 2015. Range of motion findings included 10 to 60 degrees for the
distal interphalangeal (DIP) joint and 10 to 90 degrees for the proximal interphalangeal (PIP)
joint, 0 to 85 degrees for the metacarpophalangeal (MCP) joint and two-point discrimination.
Dr. Kuzma reported that appellant complained of decreased fingertip sensation. Using the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides), he found 12 percent digit or 2 percent hand impairment for DIP
joint, 9 percent digit or 2 percent hand impairment for the PIP joint, and 7 percent digit or 1
percent hand impairment resulting in a total of five percent hand impairment.
In a September 14, 2015 report, OWCP’s medical adviser reviewed Dr. Kuzma’s reports
and determined that appellant had 19 percent permanent impairment of the right middle finger.
He found appellant had reached MMI on May 15, 2015. In reaching his impairment
determination, the medical adviser used Table 15-31, page 470 and Table 15-16, page 427 to
calculate the permanent impairment based on loss of range of motion and sensory loss. Using
Table 15-31, page 427 he found 6 percent impairment for PIP 0 to 85 degrees, and 10 percent
permanent impairment for DIP 10 to 60 degrees, resulting in a total of 16 percent permanent
impairment for range of motion. Next, using Table 15-16, page 427 the medical adviser found
three percent permanent impairment for sensory loss. He then combined the range of motion and
sensory impairment (16 + 3) to find a total of 19 percent right second finger permanent
impairment.
On October 23, 2015 OWCP’s medical adviser revised the date of MMI to June 15, 2015.
He noted that he had made an error in his prior report regarding this date.
By decision dated October 27, 2015, OWCP granted appellant a schedule award for 19
percent permanent impairment of his right second finger. The period of the award covered
June 15 to July 24, 2015 or 5.7 weeks.
LEGAL PRECEDENT
Under section 8107 of FECA2 and section 10.404 of the implementing federal
regulations,3 schedule awards are payable for permanent impairment of specified body members,
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

2

functions or organs. FECA, however, does not specify the manner in which the percentage of
impairment shall be determined. For consistent results and to ensure equal justice under the law
for all claimants, good administrative practice necessitates the use of a single set of tables so that
there may be uniform standards applicable to all claimants. The A.M.A., Guides has been
adopted by the implementing regulations as the appropriate standard for evaluating schedule
losses.4
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).5 Under the sixth edition, the evaluator identifies the impairment Class of
Diagnosis (CDX) condition, which is then adjusted by grade modifiers based on Functional
History (GMFH), Physical Examination (GMPE), and Clinical Studies (GMCS).6 The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).7
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with an OWCP medical
adviser providing rationale for the percentage of impairment specified.8
ANALYSIS
OWCP accepted appellant’s claim for right second finger crushing injury. By decision
dated October 27, 2015, it granted him a schedule award for 19 percent permanent impairment of
his right second finger.
In reports dated June 15 and September 6, 2015, Dr. Kuzma advised that appellant had 19
percent right second finger impairment or 5 percent hand impairment using the sixth edition of
the A.M.A. Guides and that appellant reached maximum medical improvement on June 15, 2015.
The Board notes, however, that he did not cite to any specific tables or pages in the A.M.A.,
Guides to support his rating.
Board precedent is well settled that when an attending physician’s report gives an
estimate of impairment, but does not address how the estimate is based upon the A.M.A.,
Guides, OWCP may follow the advice of its medical adviser or consultant where he/she has
properly applied the A.M.A., Guides.9
4

D.J., 59 ECAB 620 (2008); Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

5

A.M.A., Guides (6th ed., 2009), page 3, section 1.3, The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.
6

Id. at pp. 383-419.

7

Id. at 411.

8

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013). See C.K., Docket No. 09-2371 (issued August 18, 2010); Frantz Ghassan, 57
ECAB 349 (2006).
9

J.Q., Docket No. 06-2152 (issued March 5, 2008); Laura Heyen, 57 ECAB 435 (2006).

3

In a September 14, 2015 report, OWCP’s medical adviser reviewed Dr. Kuzma’s reports
and concurred with the 19 percent permanent impairment of the right second finger. Using Table
15-31, page 427 he found 6 percent impairment for PIP range of motion and 10 percent
permanent impairment for DIP range, resulting in a total of 16 percent permanent impairment.
The medical adviser found three percent impairment for sensory loss using Table 15-16, page
427. He then combined the range of motion and sensory impairment (16 + 3) to find a total of 19
percent permanent right second finger impairment. In his October 23, 2015 report, the medical
adviser noted that he misstated the date of maximum medical improvement in his prior report
and that the correct date was June 15, 2015.
The only medical report properly following the A.M.A., Guides in addressing appellant’s
impairment was from OWCP’s medical adviser, who submitted a September 6, 2015 report
following the assessment formula of the sixth edition of the A.M.A., Guides. The medical
adviser utilized the clinical findings of Dr. Kuzma and concurred with the assessment of 19
percent permanent impairment of the right second finger and that maximum medical
improvement had been reached on June 15, 2015.
The Board finds that there is no medical evidence of record properly following the
A.M.A., Guides which provides a greater percentage of permanent impairment. Therefore,
OWCP properly relied on the medical adviser’s assessment of a 19 percent permanent
impairment of the right second finger based on the sixth edition of the A.M.A., Guides.
On appeal appellant argues that he is entitled to a greater schedule as this injury has had a
major impact on his quality of life and the monetary award was inadequate. He notes that as a
result of this injury, his handwriting has changed, he has problems opening lids for his wife, his
workout with weights has changed, and he faces challenges with tightening and unloosening
items. As discussed above, the medical evidence of record only establishes entitlement to 19
percent permanent impairment of the right second finger. While the Board has held that where
the residuals of an injury to a scheduled member of the body extend into an adjoining area of a
member also enumerated in the schedule, such as an injury of a finger into a hand, or a hand into
the arm, the schedule award should be made on the basis of the percentage loss of use to the
larger member.10 Appellant has not submitted any medical evidence establishing that he is
entitled to a larger schedule award or monetary compensation due to residuals from the accepted
second finger injury extending to the hand or arm.11
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.

10

G.J., Docket No. 13-0151, (issued November 19, 2013). The Board found that appellant’s impairment of the
middle finger caused stenosing tenosynovitis into the arm. See also K.H., Docket No. 09-2143 (issued
May 17, 2010).

4

CONCLUSION
The Board finds that appellant has not established greater than 19 percent permanent
impairment of the right second finger, for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 27, 2015 is affirmed.
Issued: August 18, 2016
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
U.S. POSTAL SERVICE, COMPUTERIZED
FORWARDING SYSTEM, St. Louis, MO,
Employer
__________________________________________

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

Docket No. 07-384
Issued: June 15, 2007

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 November 27, 2006 appellant filed a timely appeal from the decisions of the Office of
Workers’ Compensation Programs dated June 7 and October 13, 2006, finding that appellant was
not entitled to a schedule award for an additional impairment to his left upper extremity.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
schedule award decision.
ISSUE
The issue is whether appellant has established that he has more than a 15 percent
permanent impairment of the left upper extremity.
FACTUAL HISTORY
On May 9, 2001 appellant, then a 50-year-old modified general clerk, filed an
occupational disease claim alleging that he tore his left rotator cuff through the repetitive use of
his hands and arms. On May 10, 2001 he underwent acromioplasty and repair of the left rotator

cuff. By decision dated November 16, 2001, the Office accepted appellant’s claim for a torn left
rotator cuff. On July 23, 2002 the Office issued him a schedule award for the 15 percent
impairment of his left upper extremity.1
On November 4, 2004 appellant, who was then retired, filed a claim for recurrence of
disability alleging that his left rotator cuff had torn again as a result of his original injury. He
underwent a repair of his rotator cuff on September 23, 2004. By decision dated December 29,
2004, the Office accepted the recurrence of appellant’s left rotator cuff tear.
On October 24, 2005 appellant filed a request for an additional schedule award.
Dr. Clayton Perry, the Board-certified orthopedic surgeon who performed both of appellant’s
rotator cuff repair surgeries, stated that on January 23, 2006 appellant’s left shoulder had reached
maximum medical improvement. On April 25, 2006 the Office referred appellant to Dr. Jack
Tippett, a Board-certified orthopedic surgeon, to determine whether he had sustained permanent
impairment as a result of his recurrence of disability. Dr. Tippett was instructed to use the
American Medical Association, Guides to the Evaluation of Permanent Impairment. The
statement of accepted facts provided to Dr. Tippett indicated that in addition to the schedule
award issued on July 24, 2002 appellant received one on October 6, 1980 for the five percent
impairment of his left arm in Office File No. 11-0031613.
On May 16, 2006 Dr. Tippett conducted his examination. He noted that appellant had a
form of muscular dystrophy that primarily affected his lower extremities and that appellant’s
chief complaints were pain, stiffness and weakness in his left shoulder. Dr. Tippett reported that
appellant injured his left shoulder in 1979 and underwent a successful arthroplasty of the left
acromioclavicular joint with resection of a small segment of the distal clavicle. He stated that
appellant had not experienced any complications after his 2001 or 2004 shoulder surgeries and
that his treating physician found that he had reached maximum medical improvement.
Dr. Tippett reported that appellant’s left shoulder was “doing reasonably well” but still had
stiffness and soreness, especially when performing activities with the left arm. Appellant
informed him that he had difficulty shaving, carrying objects and rotating his shoulder outward.
On examination Dr. Tippett noted mild tenderness of the left shoulder generally and
slight, symmetrical atrophy of the muscles in both shoulders. He measured active range of
motion in the shoulders using a 12-inch goniometer. In the left shoulder Dr. Tippett measured 70
degrees of abduction, 50 degrees of adduction, 0 degrees of external rotation, 90 degrees of
internal rotation, 60 degrees of flexion and 50 degrees of extension. He stated that appellant’s
right shoulder was used as a comparison and had normal range of motion in all areas. Based on
the A.M.A., Guides, Figure 16-40, page 476, Figure 16-41, page 477, and Figure 16-46, page
479, Dr. Tippett found a total left upper extremity impairment of 25 percent based on
impairments of 8 percent for limited flexion, 5 percent for limited abduction, and 12 percent for
loss of external rotation. He stated that he also referred to other methods to determine
impairment, including radiographic evaluation, complaints and symptoms and muscle strength.
Dr. Tippett opined that muscle strength was not a reasonable method for determining impairment
1

Appellant received a 14 percent impairment rating for diminished range of motion and a 1 percent rating for
abduction weakness.

2

because of appellant’s known muscular disorder and that the other methods were less effective
than range of motion.
On May 29, 2006 the Office medical adviser found that appellant was not entitled to an
additional schedule award. He noted that Dr. Tippett had considered range of motion, pain and
sensory change and weakness in evaluating appellant’s impairment. The Office medical adviser
found that Dr. Tippett had correctly stated the impairment ratings for abduction and flexion, but
had incorrectly stated that the impairment rating for zero degrees of external rotation was 12
percent, rather than the 2 percent indicated by Figure 16-46, page 479 of the A.M.A., Guides.
He found that, based on the results of Dr. Tippet’s examination, appellant had a 15 percent
impairment rating. Dr. Zimmerman noted that appellant received schedule awards for the 5
percent impairment of his left arm in 1980 and the 15 percent impairment of his left arm in 2002.
Because these schedule awards covered impairment ratings totaling 20 percent, the 15 percent
impairment rating indicated by Dr. Tippett’s examination did not warrant an increase in
appellant’s schedule award.
By decision dated June 7, 2006, the Office denied appellant’s claim for a schedule award.
On June 9, 2006 appellant requested a review of the written record by an Office hearing
representative. He challenged Dr. Tippet’s methods, particularly his decision not to take strength
and pain into account in his impairment rating determination. Appellant stated that, when he
received an impairment rating evaluation for his right shoulder in 2000, the physician performed
a variety of tests that Dr. Tippet did not perform in his evaluation. He also stated that his
diagnosed limb-girdle muscular dystrophy caused loss of strength that should have been
considered in Dr. Tippett’s evaluation. Appellant stated that he knew his left shoulder had gotten
worse because he had more difficultly with daily activities than previously. He requested that
the Office conduct a new evaluation that took all pertinent information into account and was
based on all necessary tests.
Appellant attached medical reports from Dr. Glenn Lopate, a Board-certified neurologist
from June 26, 2003, July 1, 2004 and July 7, 2005 that included strength tests done on his
deltoids, biceps, triceps and wrist extensors. In the 2005 report, Dr. Lopate stated that
appellant’s limb-girdle muscular dystrophy had progressed mildly since the previous year. He
noted that appellant’s upper extremity weakness was “patchy” in that it was severe in his biceps,
less severe in his deltoids and almost nonexistent in his triceps and other arm muscles.
By decision dated October 13, 2006, the Office hearing representative affirmed that
appellant did not have greater than the 20 percent permanent impairment of his left arm that had
been previously awarded. She found that the Office medical adviser had properly relied on the
findings provided by Dr. Tippett in arriving at the overall impairment rating. The Office hearing
representative noted that appellant had not submitted any additional medical opinions providing
an impairment rating of his left arm.

3

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulation3 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law for all claimants, the
Office has adopted the A.M.A., Guides as the uniform standards applicable to all claimants.4
Office procedures direct the use of the fifth edition of the A.M.A., Guides, issued in 2001, for all
decisions made after February 1, 2001.5
The standards for evaluation of the permanent impairment of an extremity under the
A.M.A., Guides are based on loss of range of motion, together with all factors that prevent a limb
from functioning normally, such as pain, sensory deficit and loss of strength. All of the factors
should be considered together in evaluating the degree of permanent impairment.6 Chapter 16 of
the fifth edition of the A.M.A., Guides provides a detailed grading scheme and procedure for
determining impairments of the upper extremities due to pain, discomfort, loss of sensation or
loss of strength.7 However, decreased strength cannot be rated in the presence of decreased
motion, painful conditions, deformities or absence of parts that prevent effective application of
maximal force in the region being evaluated.8
Office procedures indicate that referral to an Office medical adviser is appropriate when a
detailed description of the impairment from a physician is obtained.9
ANALYSIS
The Board finds that the Office medical adviser correctly followed the procedures
outlined in the A.M.A., Guides in determining appellant’s permanent impairment.
Based on Dr. Tippett’s detailed and objective examination results, the Office medical
adviser found that appellant had a left upper extremity impairment rating of 15 percent. He
properly found that, according to Figure 16-46, page 479, appellant’s impairment for zero
degrees of external rotation was two percent. Appellant’s impairment for 70 degrees of
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

20 C.F.R. § 10.404(a).

5

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

6

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

7

A.M.A., Guides 433-521, Chapter 16, The Upper Extremities, (5th ed. 2001).

8

Id. at 508.

9

See Thomas J. Fragale, 55 ECAB 619 (2004); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule
Awards and Permanent Disability Claims, Chapter 2.808.6 (August 2002).

4

abduction was five percent using Figure 16-43, page 477. His impairment for 60 degrees of
flexion was eight percent using Figure 16-40, page 476. The other range of motion findings
made by Dr. Tippett did not form the basis of impairment ratings. In accordance with the
A.M.A., Guides, the Office medical adviser did not rate appellant’s decreased strength because
an award was given for decreased motion.10 When the above left upper extremity impairment
loss of range of motion ratings are added, the result is 15 percent. Accordingly, the Board finds
that the Office medical adviser properly established that the impairment rating and the Office
correctly relied on it in issuing its schedule award decision.
Appellant contends on appeal that the medical findings relied on by the Office medical
adviser were flawed because Dr. Tippett did not follow the procedures outlined in the A.M.A.,
Guides. He contended that his pain should have been included in his impairment rating. The
Board notes that the impairment ratings in the A.M.A., Guides already account for the pain
typically associated with various diseases and injuries.11 Therefore pain does not need to be
separately considered unless the impairment rating does not adequately address a claimant’s
level of impairment.12 Dr. Tippet stated that he considered appellant’s complaints and symptoms
to be less effective than range of motion in determining his level of impairment. Appellant did
not provide a medical opinion to the contrary. The Board therefore finds that the Office medical
adviser properly did not include appellant’s complaints of pain in the final impairment rating.
Appellant also argued that his weakness, which was caused primarily by his limb-girdle
muscular dystrophy, should have been considered in his impairment rating. The Board notes
that, under the A.M.A., Guides, impairment ratings based on motor weakness arising from
degenerative neuromuscular conditions such as muscular dystrophy are treated differently from
general loss of strength, which cannot be rated in cases of decreased movement.13 These
impairment ratings are not based on strength, but on the ability to perform certain activities of
daily living.14 Though appellant provided some medical reports indicating that his muscular
dystrophy impacted his upper extremities, he submitted no medical evidence to establish that this
increased the level of his left arm impairment. Without this evidence, appellant has not
established entitlement to an additional impairment of the left upper extremity over the 20
percent impairment previously awarded.
CONCLUSION
The Board finds that appellant has not established that he has more than a 15 percent
permanent impairment of the left upper extremity.
10

See A.M.A., Guides 508, section 16.8a (“Decreased strength cannot be rated in the presence of decreased
motion, painful conditions, deformities, or absence of parts (e.g., thumb amputation) that prevent effective
application of maximal force in the region being evaluated.”) (Emphasis in the original.)
11

A.M.A., Guides 570, section 18.3.

12

Id.

13

Id. at 508, section 16.8a; see also id. at 351, section 13.9e.

14

Id. at 351, section 13.9e

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 7, 2006 and the decision of the Office hearing representative
dated October 13, 2006 are affirmed.
Issued: June 15, 2007
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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DEPARTMENT OF JUSTICE, ALCOHOL
)
TOBACCO, FIREARMS & EXPLOSIVES,
)
Washington, DC, Employer
)
___________________________________________ )
K.B., Appellant

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

Docket No. 15-0928
Issued: August 17, 2015

Case submitted on the record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 23, 2015 appellant filed a timely appeal from a November 21, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of appellant’s claim for a schedule award.
ISSUE
The issue is whether appellant met his burden of proof to establish a schedule award.
FACTUAL HISTORY
On July 9, 2013 appellant, then a 30-year-old firearms enforcement officer, injured his
left hand when a weapon inadvertently fired without the trigger being pulled. Appellant noted a
hand laceration with an injury to the bone and tendon. He stopped work on July 9, 2013. OWCP
1

5 U.S.C. § 8101 et seq.

accepted the claim for open fracture of the proximal phalanx or phalanges of the left thumb, open
wound of the finger with tendon involvement, left index finger, open fracture base of thumb,
(first) metacarpal, left. Appellant received compensation benefits.
In a July 9, 2013 emergency room report, Dr. James Higgins, Board-certified in plastic
surgery and hand surgery, stated that a pistol fired about three inches from appellant’s hand. He
noted lacerations of the left thumb and index finger. The thumb had injury at the proximal
phalanx both radial and ulnarly on the dorsal aspects with bleeding controlled. The index finger
had a dorsal laceration over the metacarpophalangeal (MP) joint with the extensor tendon
exposed and appearing injured. Imaging of the left hand showed a comminuted fracture of the
left thumb, proximal phalanx, with minimal to no displacement. Dr. Higgins diagnosed left
thumb proximal phalanx open fracture, index finger extensor tendon injury at the metacarpal
level. He administered anesthesia to the hand and irrigated the wounds, noting evidence of
injury to the extensor mechanism and about a 50 percent laceration to the extensor digitorum
communis. The extensor was repaired and the wound was closed using sutures. The hand was
then placed in a protective thumb splint and MP joint extension splint.
On October 1, 2013 appellant filed a claim for a schedule award.
By letter dated June 10, 2014, OWCP requested that appellant obtain an opinion from his
treating physician regarding whether he reached maximum medical improvement and whether
his accepted condition caused permanent impairment pursuant to the American Medical
Association, Guides to the Evaluation of Permanent Impairment, (hereinafter, A.M.A., Guides)
(6th ed. 2009).
Appellant provided several reports from Dr. Keith A. Segalman, a Board-certified
orthopedic surgeon. The reports included a July 26, 2013 report in which Dr. Segalman noted
that appellant was seen for left hand complaints. Dr. Segalman advised that appellant sustained a
gunshot wound to his left hand on July 9, 2013. He explained that appellant was seen at the
emergency room and had an extensor repair of the index finger and irrigation of a fracture of the
left thumb. Dr. Segalman examined appellant and advised that he recommended a closed
pinning versus an open reduction and internal fixation, as an outpatient in the near future. He
also explained that the procedure needed to be performed “quickly to avoid a malunited
fracture.” In an August 7, 2013 report, Dr. Segalman explained that they were going to allow the
fracture to heal before considering an osteotomy. He indicated that appellant was scheduled for
follow up in approximately four weeks and then he would begin a course of therapy. In an
August 30, 2013 report, Dr. Segalman opined that appellant had residual contracture related to
the malunion, but his function was greatly improved. He recommended a return to light duty and
continued therapy. Dr. Segalman explained that, if appellant was still having difficulty in four
weeks, they would consider an osteotomy, otherwise he would likely be at maximum medical
improvement. In a September 27, 2013 report, he noted that appellant was status post gunshot
wound to his left hand with malunion of his thumb. Dr. Segalman explained that appellant’s
function was greatly improved and appeared to be continuing to improve. He indicated that
appellant was doing well with therapy, but they “could not guarantee that the patient would
improve his motion and he may lose his motion. We may not necessarily make him better with
the surgery at this point.” Dr. Segalman recommended that appellant continue to live with his

2

current state and continue to work on exercises at home. He advised that appellant could return
to full work status.
On November 21, 2014 OWCP denied appellant’s claim for a schedule award. It found
that the medical evidence of record did not support a permanent impairment to a scheduled
member or function of the body.
LEGAL PRECEDENT
The schedule award provision of FECA,2 and its implementing federal regulations,3 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.4 For decisions issued
after May 1, 2009, the second printing of the sixth edition will be used.5
ANALYSIS
The evidence of record is insufficient to establish that appellant is entitled to a schedule
award in accordance with the sixth edition of the A.M.A., Guides.
OWCP accepted appellant’s claim for open fracture of the proximal phalanx or phalanges
of the left thumb, open wound of the finger with tendon involvement, left index finger, open
fracture base of thumb, (first) metacarpal, left. Appellant claimed a schedule award on
October 1, 2013. The record contains reports dating from July 26 to September 27, 2013 from
appellant’s treating physician, Dr. Segalman. However, Dr. Segalman did not provide any
opinion in which he indicated that appellant had a permanent impairment pursuant to the
A.M.A., Guides. On June 10, 2014 OWCP advised appellant of the type of evidence needed to
establish his schedule award claim, but such evidence was not submitted. As appellant did not
submit any medical evidence to support that he had ratable impairment of his hand or arm under
the A.M.A., Guides, he has not established entitlement to a schedule award.
Following issuance of OWCP’s November 21, 2014 decision, appellant offered
additional evidence. However, the Board may not consider such evidence for the first time on
appeal as its review is limited to the evidence that was before OWCP at the time of its decision.6
On appeal, appellant also asserted that OWCP did not properly develop his claim and that this
resulted in a worsening of his condition. The Board notes that it only has jurisdiction over the
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

Id. at § 10.404(a).

5

FECA Bulletin No. 09-03 (issued March 15, 2009).

6

See 20 C.F.R. § 501.2(c).

3

November 21, 2014 decision in which OWCP found that appellant had not established
entitlement to a schedule award.7
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he was
entitled to a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the November 21, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 17, 2015
Washington, DC

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

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

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

7

The Board only has jurisdiction over adverse final decisions of OWCP. See 20 C.F.R. §§ 501.2(c) and 501.3(a).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.Y., Appellant
and
DEPARTMENT OF AGRICULTURE, FOREST
SERVICE, Russellville, AR, Employer
__________________________________________

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

Docket No. 07-2145
Issued: April 18, 2008

Case Submitted on the Record

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

JURISDICTION
On August 20, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated March 29, 2007 with respect to a schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant is entitled to a schedule award for a brain or emotional
disorder.
FACTUAL HISTORY
The Office accepted that appellant sustained injuries on February 17, 1999 when a tree
fell and struck him on the head while in the performance of his duties as a forestry technician.
The following conditions were accepted: thoracic and neck sprain/strains; displacement of
cervical intervertebral disc; headache; postconcussion syndrome; displacement of lumbar
intervertebral disc; and lumbar spinal stenosis.

In a report dated October 9, 2002, Dr. Patricia Walz, a clinical psychologist, provided a
history and results of psychological examination. She diagnosed mild cognitive deficits related
to traumatic brain injury and somatoform pain disorder. Dr. Walz opined that appellant had 10
percent impairment to the right hand due to motor deficit and weakness, 10 percent impairment
for clinical dementia related to tactile memory and speech discrimination impairment and a 14
percent impairment for “emotional and behavioral disorder related to his depression and the
somatoform illness.”
Appellant’s attending osteopath opined in a March 10, 2004 report that appellant had a
nine percent right arm permanent impairment. An Office medical adviser concurred with this
opinion in a July 19, 2004 report. By decision dated January 12, 2006, the Office issued a
schedule award for a nine percent permanent impairment to the right upper extremity.
On November 10, 2006 appellant filed a claim for compensation (Form CA-7) indicating
he was claiming a schedule award. He explained in a narrative statement that he would like the
Office to consider the report of Dr. Walz and the impairment for clinical dementia, and
emotional and behavioral disorders.
By decision dated March 29, 2007, the Office found that appellant was not entitled to a
schedule award for a brain disorder as the brain was not a scheduled member of the body.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides that, if there is permanent disability
involving the loss or loss of use of a member or function of the body, the claimant is entitled to a
schedule award for the permanent impairment of the scheduled member or function.1 The
specific members enumerated include the eye, arm, hand, fingers, leg, foot and toes. As to
functions, the Act provides compensation for loss of hearing and loss of vision.2 In addition, 5
U.S.C. § 8107(c)(22) vests the Secretary of Labor with the authority to expand the list of
scheduled members to include “any other important external or internal organ of the body.” In
accord with the authority granted under section 8107(c)(22), the Secretary added the breast,
kidney, larynx, lung, penis, testicle, ovary, uterus and tongue as scheduled members or organs.3
No schedule award is payable for a member, function or organ of the body not specified
under the Act or the implementing regulations.4 The Act specifically provides that the brain,

1

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
2

5 U.S.C. § 8107(c).

3

20 C.F.R. § 10.404(a) (1999).

4

Patricia J. Horney, 56 ECAB 256 (2005).

2

heart and back are excluded under the term “organ.”5 Neither the Act nor the regulations
authorize payment of a schedule award for loss of cognitive function.6
For consistent results and to ensure equal justice for all claimants, the Office has adopted
the American Medical Association, Guides to the Evaluation of Permanent Impairment as the
uniform standard applicable to all claimants in calculating a schedule award.7 As of February 1,
2001, the fifth edition of the A.M.A., Guides was to be used to calculate schedule awards.8
ANALYSIS
Appellant received a schedule award for a nine percent permanent impairment to his right
arm as a result of the February 17, 1999 employment injury. He seeks an additional award based
on the October 9, 2002 report from Dr. Walz, who had noted cognitive deficits and provided
impairment ratings for clinical dementia and “emotional and behavioral disorder.” While
Dr. Walz referred to the A.M.A., Guides, the initial question is whether she identified an
impairment to a scheduled member, function or organ of the body under the Act.9 As noted
above, the brain is not a scheduled organ of the body. There is no schedule award for loss of
cognitive function, or a behavioral disorder. Dr. Walz did not identify a scheduled member,
function or organ of the body with respect to her impairment ratings due to a traumatic brain
injury. The right arm impairment was considered in the January 12, 2006 Office decision and is
not before the Board on this appeal.
There is, therefore, no basis for issuing an additional schedule award based on the report
of Dr. Walz or other medical evidence of record. There is no schedule award payable for a
member, function or organ of the body not specified under the Act or the implementing
regulations. The Office properly determined that appellant was not entitled to a schedule award
in its March 29, 2007 decision.
CONCLUSION
Appellant is not entitled to a schedule award related to a brain disorder, cognitive deficit
or an emotional condition.

5

5 U.S.C. § 8101(20).

6

Brent A. Barnes, 56 ECAB 336 (2005).

7

A. George Lampo, 45 ECAB 441 (1994).

8

FECA Bulletin No. 01-05 (issued January 29, 2001).

9

If a scheduled member or function is identified, then the question is whether the impairment described is
causally related to federal employment and, if so, whether it is ratable under the A.M.A., Guides.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 29, 2007 is affirmed.
Issued: April 18, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION,
Madisonville, KY, Employer
__________________________________________

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

Docket No. 11-1515
Issued: February 21, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 14, 2011 appellant filed a timely appeal from a May 6, 2011 merit decision of
the Office of Workers’ Compensation Programs (OWCP) denying a schedule award. Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant sustained a ratable hearing impairment entitling
him to a schedule award; and (2) whether he was entitled to hearing aids.
FACTUAL HISTORY
On January 27, 2011 appellant, then a retired 65-year-old supervisory mine safety and
health specialist, filed an occupational disease claim alleging that he sustained hearing loss as a
1

5 U.S.C. § 8101 et seq.

result of prolonged exposure to loud machinery. He was last exposed on October 19, 2010 and
retired effective December 31, 2010.
OWCP received several audiometric records from the employing establishment. A
February 12, 1976 audiogram revealed the following decibel (dBA) losses at 500, 1,000, 2,000
and 3,000 Hertz (Hz): 5, 0, 0 and 0 for the right ear and 5, 0, 0 and 5 for the left ear. At the
same frequency levels, an October 20, 2010 audiogram showed dBA losses of 5, 0, 15 and 35 for
the right ear and 5, 10, 20 and 40 for the left ear.
A March 3, 2011 statement of accepted facts detailed that appellant worked for the
employing establishment from September 13, 1970 until December 31, 2010 as a mine inspector,
supervisor and manager. During his career, he was routinely exposed to noise generated by
underground mining equipment, including long wall and continuous miners, drills, roof bolters,
centrifugal fans, coal crushers, rotary breakers, augers, ram cars, loaders, excavators, bull dozers,
scrapers and scoops.
OWCP referred appellant for a second opinion examination to Dr. Linda A. Mumford, a
Board-certified otolaryngologist. In an April 20, 2011 report, Dr. Mumford reviewed the case
file and noted that the February 12, 1976 audiogram exhibited normal hearing. On examination,
she did not observe any physical abnormalities. An audiogram obtained on April 20, 2011
showed the following dBA losses at 500, 1,000, 2,000 and 3,000 Hz: 10, 10, 20 and 30 for the
right ear and 15, 15, 30 and 40 for the left ear.2 Speech reception threshold scores were 20 dBA
for the right ear and 25 dBA for the left ear. Dr. Mumford diagnosed moderate-to-severe
bilateral sensorineural hearing loss due to occupational noise exposure, citing appellant’s
extensive job history. She recommended a hearing aid trial.
On April 26, 2011 OWCP’s medical adviser reviewed Dr. Mumford’s report and agreed
that appellant’s binaural hearing loss resulted from occupational noise exposure. Applying the
standard provided by the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides)3 to the April 20, 2011 audiogram, he calculated a nonratable loss.
The medical adviser determined that hearing amplification was not warranted because
appellant’s speech reception threshold scores were excellent. He identified April 20, 2011 as the
date of maximum medical improvement.
By decision dated May 6, 2011, OWCP accepted appellant’s claim for bilateral noiseinduced hearing loss and denied entitlement to a schedule award on the grounds that the accepted
condition was not ratable. It also found that hearing aids were not warranted.

2

The audiogram also revealed the following dBA losses at 4,000, 6,000 and 8,000 Hz: 40, 60 and 85 for the right
ear and 50, 70 and 95 for the left ear.
3

A.M.A., Guides (6th ed. 2008).

2

LEGAL PRECEDENT -- ISSUES 1 & 2
FECA’s schedule award provision and its implementing regulations4 set forth the number
of weeks of compensation payable to employees sustaining permanent impairment from loss of
or loss of use of scheduled members or functions of the body. An employee is entitled to a
maximum award of 52 weeks of compensation for complete loss of hearing of one ear and 200
weeks of compensation for complete loss of hearing of both ears.5 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 Hz, the losses at each
frequency are added up and averaged. Then, the “fence” of 25 dBA is deducted because, as the
A.M.A., Guides points out, losses below 25 dBA result in no impairment in the ability to hear
everyday speech under everyday conditions. The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss. Binaural loss is determined by first
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. The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.7
Following medical evaluation of a claim, if the hearing loss is determined to be
nonratable for schedule award purposes, other benefits such as hearing aids may still be payable
if any employment-related hearing loss exists.8
ANALYSIS -- ISSUES 1 & 2
Appellant filed a claim for binaural hearing loss and was referred to Dr. Mumford for a
second opinion examination. After reviewing the statement of accepted facts and prior
audiometric records, conducting a thorough physical evaluation and obtaining an audiogram on
April 20, 2011, Dr. Mumford diagnosed bilateral sensorineural hearing loss due to industrial
noise exposure. OWCP’s medical adviser concurred with this assessment, but found that
appellant did not sustain a ratable condition for purposes of a schedule award. By decisions

4

20 C.F.R. § 10.404.

5

5 U.S.C. § 8107(c)(13).

6

Supra note 4. See also Mark A. Holloway, 55 ECAB 321, 325 (2004).

7

J.H., Docket No. 08-2432 (issued June 15, 2009); J.B., Docket No. 08-1735 (issued January 27, 2009).

8

See F.D., Docket No. 10-1175 (issued January 4, 2011); FECA Procedure Manual, Part 3 -- Medical, Medical
Services and Supplies, Chapter 3.400.3(d)(2).

3

dated May 6, 2011, OWCP accepted the occupational disease claim for bilateral hearing loss, but
denied a schedule award and hearing aids.
The Board finds that OWCP properly denied appellant’s schedule award claim. On
April 26, 2011 OWCP’s medical adviser applied the A.M.A., Guides standard for rating hearing
impairment to the April 20, 2011 audiogram. Appellant’s right ear recorded losses of 10, 10, 20
and 30 dBA at 500; 1,000; 2,000 and 3,000 Hz. The total loss was 70 dBA. When divided by
four, the result was an average hearing loss of 17.5 dBA. The average hearing of 17.5 dBA was
reduced by the fence of 25 dBA to zero dBA. This figure was then multiplied by the established
factor of 1.5, yielding zero percent monaural impairment of the right ear. At the same frequency
levels, appellant’s left ear recorded losses of 15, 15, 30 and 40 dBA. The total loss was 100
dBA. When divided by four, the result was an average hearing loss of 25 dBA. The average
hearing of 25 dBA was reduced by the fence of 25 dBA to equal zero dBA. This figure was then
multiplied by the established factor of 1.5, yielding zero percent monaural impairment of the left
ear. Since OWCP’s medical adviser properly determined that the condition was not ratable,
appellant was not entitled to a schedule award.
The Board also finds that OWCP properly denied appellant’s request for hearing aids. As
noted, hearing aids and other medical benefits may still be payable if an employment-related
hearing loss exists. While OWCP is obligated to pay for medical treatment of a work-related
injury, the employee has the burden of establishing that the expenditure is incurred for treatment
of the effects of such injury. Proof of causal relationship must include supporting rationalized
medical evidence.9 In the present case, appellant did not meet this burden. The only evidence of
record supporting hearing amplification was Dr. Mumford’s recommendation for a trial in her
April 20, 2011 report. This brief remark did not offer a clear, rationalized explanation
demonstrating that hearing aids were medically necessary due to the accepted condition.10 On
the other hand, OWCP’s medical adviser specifically opined in his April 26, 2011 report that
amplification was unwarranted in view of appellant’s speech reception threshold scores. Thus,
the weight of the medical evidence does not support authorization of hearing aids.
Appellant contends on appeal that he was informed by an audiologist during the April 20,
2011 second opinion examination that he required hearing aids. An audiologist, however, is not
a physician under FECA and cannot provide a qualified medical opinion on the matter.11
Appellant may request a schedule award based on evidence of a new exposure or medical
evidence showing progression of an employment-related condition resulting in permanent
impairment or increased impairment.

9

See Charlie A. Penney, Docket No. 04-1432 (issued October 5, 2004).

10

See id.

11

T.B., Docket No. 09-1504 (issued April 12, 2010). See also Charley V.B. Harley, 2 ECAB 208, 211 (1949)
(medical opinion, in general, can only be given by a qualified physician).

4

CONCLUSION
The Board finds that appellant did not sustain a ratable hearing impairment entitling him
to a schedule award. The Board also finds that he was not entitled to hearing aids.
ORDER
IT IS HEREBY ORDERED THAT the May 6, 2011 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 21, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

5