United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Savannah, GA, Employer
__________________________________________

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

Docket No. 07-544
Issued: May 8, 2007

Case Submitted on the Record

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

JURISDICTION
On December 19, 2006 appellant filed a timely appeal of a November 20, 2006 merit
decision of the Office of Workers’ Compensation Programs with respect to the termination of her
compensation benefits under 5 U.S.C. § 8106(c)(2). 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 properly terminated appellant’s compensation effective
June 12, 2004 on the grounds that he refused an offer of suitable work under 5 U.S.C.
§ 8106(c)(2).
FACTUAL HISTORY
On October 11, 2002 appellant, a truck driver, filed a traumatic injury claim (Form CA-1)
alleging that he sustained knee injuries when the hydraulic lift he was standing on lost pressure

and collapsed to the ground. The Office accepted bilateral sprain/strain of the knees, leg
contusions and aggravation of left knee arthritis.1
Edward Allcock, an attending osteopath, opined that appellant was totally disabled for
work in a report dated May 5, 2003. He diagnosed degenerative changes of the lumbar spine and
left knee, with chronic low back and knee pain. The Office referred appellant for a second
opinion examination by Dr. Douglas Hein, an orthopedic surgeon. In a report dated June 2,
2003, Dr. Hein provided a history and results on examination. He indicated that appellant had
degenerative changes in the knees and back. Dr. Hein stated that the degenerative changes
antedated the employment injury and did not establish an ongoing aggravation of the spinal
condition. He found that the contusions and strains to the right knee had resolved, but there was
ongoing difficulty with the left knee. Dr. Hein completed a work capacity evaluation
(OWCP5-c) indicating that appellant could work with restrictions such as one hour of walking
and standing, and a 10-pound lifting restriction.
The Office determined that a conflict in the medical evidence existed with respect to
appellant’s ability to work. Appellant was referred to Dr. H. Clark Deriso, a Board-certified
orthopedic surgeon, for a referee examination. By report dated August 12, 2003, Dr. Deriso
provided a history and results on examination. He diagnosed probable early osteoarthritis of the
left knee, early osteoarthritis of the right knee and history of chronic back pain. Dr. Deriso
stated:
“I would agree with the recommendation of Dr. Douglas Hein that this gentleman
certainly would be able to work in a sedentary capacity eight hours a day five
days a week. This gentleman has had chronic changes in his knee that have been
present for several years and not just from an accident 10 months ago. Again, I
think [appellant] can perform modified lighter-type work with no lifting greater
than 10 pounds. He indeed does have arthritis of his knees and degenerative disc
of the lumbar spine by x-ray. He had these prior to his reported injury of
October 2002.”
In a letter dated October 23, 2003, the employing establishment offered appellant a fulltime position as a modified mail processing clerk. The physical requirements included lifting up
to 10 pounds intermittently for one hour, intermittent sitting for seven hours and one-half hour
intermittent standing. Appellant rejected the offer on November 3, 2003.
By letter dated April 21, 2004, the Office advised appellant that the offered position was
considered suitable. The provisions of 5 U.S.C. § 8106(c)(2) were noted and appellant was
advised to accept the position or provide reasons for his refusal within 30 days. His
representative submitted a May 11, 2004 letter stating that appellant had gone to the employing
establishment on or about May 6, 2004 and was told there was no job available for him. He
stated that appellant spoke with a Maxine Wilson by telephone, and was advised that his
disability retirement was approved and no job was available. The representative stated that
appellant’s attending physician continued to report that appellant was totally disabled.
1

The Office did not accept aggravation of left knee arthritis until December 17, 2003.

2

In a memorandum of telephone call dated May 19, 2004, the Office indicated that
Ms. Wilson had been contacted and was advised that the offered job was still available.
According to Ms. Wilson, appellant had stated that he was on disability retirement and had no
intention of returning to work.
By letter dated May 21, 2004, the Office found that the reasons offered were insufficient.
The Office stated that the offered job remained available and appellant had 15 days to accept the
position or a final decision would be issued. On May 27, 2004 the Office received a
December 18, 2003 report from Dr. Allcock who opined that appellant was totally disabled.
Appellant also submitted a July 10, 2003 letter from a rehabilitation nurse stating that appellant
had been released to return to work on April 21, 2003 but he stopped after six hours and was
determined to be permanently disabled.
In a decision dated June 10, 2004, the Office terminated compensation for wage loss
effective June 12, 2004 on the grounds that appellant had refused an offer of suitable work. The
Office discussed the evidence submitted on May 27, 2004 and found that the weight of the
evidence rested with Dr. Deriso. Appellant requested a hearing, which was held on
May 24, 2005. He submitted reports from Dr. Christopher Oldfield regarding his continuing
treatment.
By decision dated September 6, 2005, the hearing representative affirmed the June 10,
2004 decision. The hearing representative found that Dr. Deriso represented the weight of the
evidence regarding appellant’s work capacity and that the offered job was suitable.
Appellant requested reconsideration in a letter received by the Office on
August 30, 2006. He submitted a June 5, 2006 report from Dr. Oldfield, who diagnosed chronic
leg pain and low back pain secondary to degenerative changes in knees and low back.
Dr. Oldfield opined that these conditions initially started as a result of the employment injury in
October 2002.
In a decision dated November 20, 2006, the Office reviewed the case on its merits and
denied modification of the prior decisions.
LEGAL PRECEDENT
5 U.S.C. § 8106(c) provides in pertinent part, “A partially disabled employee who …
(2) refuses or neglects to work after suitable work is offered ... is not entitled to compensation.”
It is the Office’s burden to terminate compensation under section 8106(c) for refusing to accept
suitable work or neglecting to perform suitable work.2 To justify such a termination, the Office
must show that the work offered was suitable.3 An employee who refuses or neglects to work

2

Henry P. Gilmore, 46 ECAB 709 (1995).

3

John E. Lemker, 45 ECAB 258 (1993).

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after suitable work has been offered to him has the burden of showing that such refusal to work
was justified.4
With respect to the procedural requirements of termination under section 8106(c), the
Board has held that the Office must inform appellant of the consequences of refusal to accept
suitable work and allow appellant an opportunity to provide reasons for refusing the offered
position.5 If appellant presents reasons for refusing the offered position, the Office must inform
appellant if it finds the reasons inadequate to justify the refusal of the offered position and afford
appellant a final opportunity to accept the position.6
It is well established that when a case is referred to an impartial medical specialist 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.7
ANALYSIS
The initial question presented is whether the offered job was medically suitable. There
was a conflict in the medical evidence between Dr. Allcock, the attending physician, and the
second opinion physician, Dr. Hein, regarding appellant’s ability to work. Dr. Allcock opined
that appellant was totally disabled, while Dr. Hein found that appellant could work full time
within specified restrictions. The Federal Employees’ Compensation Act provides that, if there
is a disagreement between the physician making the examination for the United States and the
physician of the employee, the Secretary shall appoint a third physician who shall make the
examination.8 This is called a referee examination and the Office will select a physician who is
qualified in the appropriate specialty and who has no prior connection with the case.9
Dr. Deriso, the referee examiner, noted that appellant had degenerative changes to the
knees and back that preexisted the employment injury. He provided an unequivocal opinion that
appellant was capable of working eight hours in a light-duty position. Dr. Deriso indicated that
appellant should not lift more than 10 pounds. The Board finds that he provided a reasoned
medical opinion that is entitled to the special weight accorded to a referee examiner.
The offered position did not require more than 10 pounds lifting. It was a sedentary
position with lifting up to 10 pounds for one hour intermittently. The offered position conforms
to the restrictions noted by Dr. Deriso. The Board finds that, based on the weight of the medical
evidence, the offered position of modified mail processing clerk was medically suitable.

4

Catherine G. Hammond, 41 ECAB 375, 385 (1990); 20 C.F.R. § 10.517(a).

5

Maggie L. Moore, 42 ECAB 484 (1991); reaff’d on recon., 43 ECAB 818 (1992).

6

Id.

7

Harrison Combs, Jr., 45 ECAB 716, 727 (1994).

8

5 U.S.C. § 8123(a).

9

20 C.F.R. § 10.321 (1999).

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The Office notified appellant of its finding that the modified secretary job offer was
suitable and of the consequences for not accepting a suitable offer. Appellant argued that the
position was not available. The Office, however, confirmed with the employing establishment
that the position remained available. With respect to appellant’s argument that his attending
physician found him totally disabled, the case, as noted above, was sent to a referee examiner to
resolve a conflict. The referee physician’s reasoned opinion is entitled to special weight and
represents the weight of the medical evidence. Additional reports from a physician on one side
of the conflict that is properly resolved by a referee examiner are generally insufficient to
overcome the weight accorded the referee’s report or create a new conflict.10 Dr. Allcock’s
additional reports are essentially repetitive of his stated opinion on appellant’s disability status.
In accord with established procedures, the Office provided appellant an additional 15
days to accept the position prior to termination of compensation. The Board finds that the job
offered was medically and vocationally suitable, and the Office followed its procedures prior to
termination of compensation. Accordingly, the Board finds that the Office met its burden of
proof to terminate compensation for wage loss effective June 12, 2004.
Following the June 10, 2004 decision, appellant submitted medical evidence regarding
his continuing treatment from Dr. Oldfield.11 In his June 5, 2006 report, Dr. Oldfield opined that
appellant was permanently disabled. The issue is whether appellant was capable of performing
the mail processing clerk position at the time it was offered. Dr. Oldfield does not discuss the
offered position or provide a reasoned opinion on the issue presented.
CONCLUSION
The Office met its burden of proof to terminate compensation effective June 12, 2004 on
the grounds that appellant had refused an offer of suitable work.

10

See Harrison Combs, Jr., supra note 7; Dorothy Sidwell, 41 ECAB 857 (1990).

11

The Board notes that, while appellant submitted a new medical report on appeal, the Board can review only
evidence that was before the Office at the time of the final decision on appeal. 20 C.F.R. § 501.2(c).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 20, 2006 is affirmed.
Issued: May 8, 2007
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Camden, AR, Employer
__________________________________________

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Appearances:
James W. Stanley, Jr., Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-1377
Issued: August 4, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDITION
On June 1, 2006 appellant, through counsel, filed a timely appeal of the May 16, 2006
merit decision of the Office of Workers’ Compensation Programs, which denied modification of
an August 12, 2005 decision affirming the determination of her wage-loss benefits based on her
refusal of suitable work. The Office also found that appellant was not entitled to compensation
for wage loss or schedule award as she refused suitable work. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this appeal.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s wage-loss
compensation benefits effective October 12, 2004 on the grounds that she refused an offer of
suitable work, pursuant to 5 U.S.C. § 8106(c)(2); and (2) whether the Office properly found that
appellant was not entitled to a schedule award after she refused suitable work. On appeal,
counsel contends that appellant is entitled to a schedule award.

FACTUAL HISTORY
On August 14, 1996 appellant, then a 50-year-old rural carrier, filed a traumatic injury
claim alleging that on that date she hurt her neck as a result of a motor vehicle accident. By
letter dated September 25, 1996, the Office accepted the claim for cervical, back and left
shoulder strains. Appellant underwent a lumbar laminectomy/discectomy on April 30, 1997.
She returned to part-time limited-duty work on July 14, 1997. Appellant stopped work on
July 30, 1997. The Office accepted the claim for aggravation of lumbar degenerative joint
disease and headaches.
By letter dated August 13, 2003, the Office referred appellant, together with a statement
of accepted facts, the case record and a list of questions, to Dr. Thomas P. Rooney, a Boardcertified orthopedic surgeon, for a second opinion medical examination. In a September 3, 2003
medical report, Dr. Rooney listed essentially normal findings on physical, neurological and x-ray
examination. He stated that appellant suffered from degenerative disc disease of the cervical and
lumbar spines and right shoulder and tendinisis of the left shoulder. Dr. Rooney found that,
despite her complaints, the effects of the accepted August 14, 1996 employment injuries should
have resolved after six weeks. He was unable to explain her current disability but advised that it
was not related to her accepted employment injuries since all of the objective findings most
likely preexisted her injuries. Dr. Rooney opined that appellant was not totally disabled and that
she could return to her normal occupation with restrictions.
By letter dated October 20, 2003, the Office requested that Dr. Shailesh C. Vora, an
attending Board-certified neurologist, review and comment on Dr. Rooney’s report. In an
October 23, 2003 report, Dr. Vora stated that appellant could perform sedentary work. She could
not perform her regular work duties, which involved repetitive movement and lifting heavy
objects based on the findings of magnetic resonance imaging (MRI) scans of her cervical, lumbar
and thoracic spines and nerve conduction velocity/electromyogram studies.
By letter dated January 5, 2004, the Office requested that Dr. Vora clarify his opinion
regarding appellant’s ability to perform sedentary work. In a January 9, 2004 work capacity
evaluation (Form OWCP-5c), he stated that appellant could not perform her regular work duties
eight hours per day. Dr. Vora provided physical restrictions.
The Office found a conflict in the medical opinion evidence between Dr. Rooney and
Dr. Vora as to the extent of appellant’s employment-related disability. By letter dated July 6,
2004, it referred her, together with a statement of accepted facts, the case record and a list of
questions, to Dr. Lorne Ryan, a Board-certified neurologist, for an impartial medical
examination.
In a July 26, 2004 report, Dr. Ryan reviewed the history of appellant’s August 14, 1996
employment injuries and medical treatment. He reported normal findings on physical and
neurological examination. Dr. Ryan determined that appellant had reached maximum medical
improvement and had sustained a 10 percent impairment of the whole person based on the
American Medical Association, Guides to the Evaluation of Permanent Impairment, (5th ed.
2001) (113, Table 74). He stated that her headaches were not related to the accepted
employment injuries. Dr. Ryan stated that appellant’s lumbar degenerative disease may have

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been aggravated by the accepted employment injury but presumably a disc herniation was
present before the injury. Appellant’s cervical, shoulder and thoracic strains were benign
conditions and should have resolved within weeks, as noted by Dr. Rooney. Dr. Ryan opined
that appellant was partially disabled due to her degenerative disc disease at L5-S1, which
prevented her from bending, stooping and lifting more than 45 pounds. He explained that the
employment incident was minor. Dr. Rooney stated that, although MRI scan evidence showed a
herniated disc at L5/S1, it also showed degenerative disease at multiple levels and changes in the
bone compatible with chronic degenerative disease of the spine. He concluded that appellant
suffered from a chronic degenerative process which would have progressed without the accident.
Dr. Ryan opined that the etiology of appellant’s current disability was chronic pain. He
stated that there was no reason to attribute eight years of pain to a minor 1996 injury with
preexisting degenerative disc disease. Dr. Ryan opined that appellant could not resume her
regular duties as a rural carrier but was not totally disabled. She could return to full-time work
with physical restrictions. In an August 5, 2004 OWCP-5c form, Dr. Ryan stated that appellant
could bend, stoop, kneel and climb up to two hours per day and lift no more than 45 pounds up to
eight hours per day.
On August 12, 2004 the Office requested that the employing establishment advise
whether appellant could be placed in a job based on the restrictions set forth by Dr. Ryan. By
letter dated August 12, 2004, the Office issued a notice of proposed termination of medical
benefits for her employment-related headaches and strains based on Dr. Ryan’s impartial
medical opinion.
On August 20, 2004 the employing establishment offered appellant a full-time modified
rural carrier position. The position required sorting mail, preparing a trip report, maintaining
change of address information and loading mail into a vehicle and delivering it to customers.
The physical requirements included intermittent reaching above the shoulders, standing, simple
grasping and sitting/driving. The employing establishment noted Dr. Ryan’s restrictions and
stated that the position was being offered to appellant to work within the noted limitations.
In a letter dated August 26, 2004, the Office advised appellant that a modified position
was available and that she had 30 days to either accept the position or provide an explanation for
refusing it. It found that the position was based on Dr. Ryan’s July 26 and August 5, 2004
reports. The Office advised appellant that she would be paid for any difference in salary
between the offered position and her date-of-injury position and that she could accept the job
without penalty. It informed her that her compensation could be terminated based on her refusal
to accept a suitable position pursuant to 5 U.S.C. § 8106(c)(2).
On August 31, 2004 appellant rejected the modified-duty job offer. She contended that
she was not physically or mentally able to perform the duties of the offered position. Appellant
related that she could not lift 40 pounds as required. She submitted the June 25, 2003 MRI scan
of Dr. Robert W. Laakman, a Board-certified radiologist, who found moderate and mild
hypertrophic change of the acromioclavicular joints of the right and left shoulder with evidence
of supraspinatus tendinisis, respectively. There was joint effusion with evidence of suspected
loose bodies within the joints and possible intrasubstance tears involving the supraspinatus
tendon of the right shoulder. There was no full thickness or rotator cuff tear in the shoulders.

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In an August 27, 2004 letter, appellant alleged that she remained totally disabled for
work. She submitted Dr. Vora’s August 26, 2004 prescription for a functional capacity
evaluation.
By decision dated September 14, 2004, the Office terminated appellant’s wage-loss
compensation benefits effective that date for headaches and strains. It accorded special weight to
Dr. Ryan’s July 26, 2004 opinion as an impartial medical specialist in finding that appellant no
longer had any residuals or disability causally related to her accepted August 14, 1996
employment-related headaches and strains. The Office stated that she was still entitled to
medical benefits for her employment-related aggravated lumbar degenerative disc disease.
On September 27, 2004 the Office advised appellant that her reasons for refusing the
offered position were not valid. She was given 15 days to accept the position. Appellant did not
respond within the allotted time period.
In an October 5, 2004 report, Dr. Dan A. Martin, a Board-certified internist, stated that
appellant experienced symptoms related to degenerative disc disease of the lumbar and cervical
spines and chronic low back pain radiating to her left leg. Dr. Martin noted that her condition
was complicated by fibromyalgia. Appellant also developed arthritis in the left shoulder with
tendinitis and bone spurs and loose bodies within the joint. Dr. Martin opined that she was
disabled from her usual work duties as a rural carrier because she was precluded from lifting
more than 40 pounds. She was also restricted from twisting, bending and stooping in a repetitive
manner. Dr. Martin concluded that it was unlikely that appellant would improve over time.
In an October 12, 2004 decision, the Office terminated appellant’s wage-loss
compensation effective that date on the grounds that she refused an offer of suitable work. The
evidence she submitted was insufficient to establish that she was unable to perform the offered
position.
By letter dated October 8, 2004, appellant, through her representative, requested an oral
hearing before an Office hearing representative regarding the September 14, 2004 decision
terminating benefits for headaches and strains. On October 29, 2004 he requested a review of
the written record by a hearing representative regarding the October 12, 2004 suitable work
termination decision.
In a May 27, 2005 report, Dr. Martin stated that appellant had a L5 discectomy in 1997
and, since that time, experienced continued lumbar pain which rendered her totally disabled from
her previous mail carrier position.
By decision dated August 12, 2005, an Office hearing representative affirmed the
September 14 and October 12, 2004 decisions. She accorded special weight to Dr. Ryan’s
July 26, 2004 report as an impartial medical specialist in finding that appellant no longer had any
residuals or disability due to her August 14, 1996 employment-related cervical, lumbar and left
shoulder strains and headaches. The hearing representative found the evidence of record
sufficient to establish that appellant could perform the duties of the offered modified rural carrier
position based on the opinions of Dr. Rooney and Dr. Ryan.

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In a February 18, 1998 report, Dr. Jeff K. Ketcham, a Board-certified anesthesiologist,
stated that appellant experienced pain of unknown origin in her lower back, neck and upper
shoulder. He stated that she had very limited ability to sit or stand for any prolonged period.
Driving would be difficult since appellant had limited range of motion of the head region and she
was unable to lift more than 10 pounds comfortably. Dr. Ketcham recommended very sedentary
work that required no lifting and limited motion of the hands above the head. Appellant should
be allowed to change positions frequently during the day. Dr. Ketcham was not sure whether she
would be able to work full time, noting that she probably could work only four hours per day.
In a letter dated February 9, 2006, appellant, through counsel, requested reconsideration
of the August 12, 2005 decision.1 In an undated report, Barbara J. Morris2 stated that appellant
suffered from myofascial pain and noted her restrictions.
By letter dated March 20, 2006, appellant’s attorney submitted the treatment notes dated
February 11, 1997 through November 15, 2005 from Dr. Jay M. Lipke, a Board-certified
orthopedic surgeon, who addressed appellant’s left shoulder, knee and cervical conditions. In an
April 12, 2005 treatment note, Dr. Lipke determined that appellant sustained an 18 percent
impairment of the left upper extremity and an 11 percent impairment of the whole person.
In a May 16, 2006 decision, the Office denied modification of the August 12, 2005
decision. The evidence of record was insufficient to establish that appellant continued to be
disabled due to the August 14, 1996 employment injuries or that she was unable to perform the
duties of the modified rural carrier position. The Office found that the termination of appellant’s
compensation for refusing an offer of suitable work pursuant to section 8106(c) of the Federal
Employees’ Compensation Act barred her receipt of any subsequent wage loss or schedule award
compensation.3
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation. Under section 8106(c)(2) of the Act, the Office may terminate
the compensation of a partially disabled employee who refuses or neglects to work after suitable
work is offered to, procured by or secured for the employee.4 To justify termination, the Office
1

By decision dated April 28, 2006, the Office found that appellant’s letter requesting reconsideration was dated
February 9, 2006, more than one year after its October 12, 2004 decision and was untimely. It found that she did not
submit evidence to establish clear evidence of error in the prior decisions terminating her compensation benefits. In
a May 12, 2006 letter, appellant’s counsel stated that his February 9, 2006 letter requested reconsideration of the
hearing representative’s August 12, 2005 decision and not the October 12, 2004 decision and, thus, it was timely
filed.
2

The Board notes that Ms. Morris’ professional qualifications are not contained in the case record.

3

The Board notes that, following the issuance of the Office’s May 16, 2006 decision, the Office received
additional evidence. The Board may not consider evidence for the first time on appeal which was not before the
Office at the time it issued the final decision in the case. 20 C.F.R. § 501.2(c). Appellant can submit this evidence
to the Office and request reconsideration. 5 U.S.C. § 8128; 20 C.F.R. § 10.606.
4

5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

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must show that the work offered was suitable and must inform appellant of the consequences of
refusal to accept such employment.5 Section 8106(c) will be narrowly construed as it serves as a
penalty provision, which may bar an employee’s entitlement to compensation based on a refusal
to accept a suitable offer of employment.6
Office regulations provide that, in determining what constitutes suitable work for a
particular disabled employee, the Office should consider the employee’s current physical
limitations, whether the work is available within the employee’s demonstrated commuting area,
the employee’s qualifications to perform such work and other relevant factors.7 It is well
established that the Office must consider preexisting and subsequently acquired conditions in the
evaluation of suitability of an offered position.8 The issue of whether an employee has the
physical ability to perform a modified position offered by the employing establishment is
primarily a medical question that must be resolved by the medical evidence.9
In assessing medical evidence, the number of physicians supporting one position or
another is not controlling, the weight of such evidence is determined by its reliability, its
probative value and its convincing quality. The factors that comprise the evaluation of medical
evidence include the opportunity for and the thoroughness of physical examination, the accuracy
and completeness of the physician’s knowledge of the facts and medical history, the care of
analysis manifested and the medical rationale expressed in support of the physician’s opinion.10
Office procedures state that acceptable reasons for refusing an offered position include
withdrawal of the offer, medical evidence of inability to do the work or travel to the job or the
claimant found other work which fairly and reasonably represents his or her earning capacity (in
which case compensation would be adjusted or terminated based on actual earnings).
Furthermore, if medical reports document a condition which has arisen since the compensable
injury and the condition disables the employee, the job will be considered unsuitable.11
Section 10.516 of the Code of Federal Regulations states that the Office will advise the
employee that the work offered is suitable and provide 30 days for the employee to accept the
job or present any reasons to counter the Office’s finding of suitability.12 Thus, before
terminating compensation, the Office must review the employee’s proffered reasons for refusing

5

Ronald M. Jones, 52 ECAB 190 (2000).

6

Joan F. Burke, 54 ECAB 406 (2003).

7

20 C.F.R. § 10.500(b).

8

Richard P. Cortes, 56 ECAB 200 (2004).

9

Id.; Bryant F. Blackmon, 56 ECAB 752 (2005).

10

See Connie Johns, 44 ECAB 560 (1993).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.4(b)(4) (July 1997).
12

20 C.F.R. § 10.516.

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or neglecting to work.13 If the employee presents such reasons and the Office finds them
unreasonable, the Office will offer the employee an additional 15 days to accept the job without
penalty.14
ANALYSIS -- ISSUE 1
The Board finds that a conflict in medical opinion arose between Dr. Rooney, an Office
referral physician, and Dr. Vora, an attending physician, as to whether appellant had any
continuing disability causally related to her accepted August 14, 1996 cervical, back and left
shoulder strains and aggravation of lumbar degenerative joint disease. Dr. Rooney opined that
appellant had no disability causally related to her accepted employment injuries and that she
could return to her regular work duties as a rural carrier. Dr. Vora opined that appellant was
totally disabled from her regular work duties but she could perform sedentary work with
restrictions.
The Office referred appellant to Dr. Ryan, selected as the impartial medical specialist. In
a July 26, 2004 report, Dr. Ryan listed no objective findings of disability relative to the accepted
August 14, 1996 employment injuries. After reviewing appellant’s medical records and
reporting his essentially normal findings on physical and neurological examination, Dr. Ryan
opined that appellant could not resume her regular duties as a rural carrier; however, she was not
totally disabled. He advised that she return to full-time work with physical restrictions.
Dr. Ryan explained that her headaches were not causally related to the accepted employment
injuries. He further explained that residuals of the employment-related cervical, shoulder and
thoracic strains were benign conditions and resolved within weeks after the employment injury.
Dr. Ryan stated that appellant was partially disabled due to an aggravation of her preexisting
lumbar degenerative disc disease. In an August 5, 2004 OWCP-5c form, Dr. Ryan found that
appellant could bend, stoop, kneel and climb up to two hours per day and lift no more than
45 pounds up to eight hours per day.
The Board finds that Dr. Ryan’s impartial opinion is based on a proper factual and
medical background and is entitled to special weight. He found that appellant no longer had any
total disability due to the accepted August 14, 1996 employment-related cervical, back and left
shoulder strains and aggravation of degenerative joint disease. For this reason, his report
constitutes the special weight of the medical opinion evidence afforded an impartial medical
specialist.
Based on the work restrictions provided by Dr. Ryan, the employing establishment
offered appellant the modified rural carrier position. The position involved sorting mail,
preparing a trip report, maintaining change of address information and loading mail into a
vehicle and delivering it to customers. The physical requirements included intermittent reaching
above the shoulders, standing, simple grasping and sitting/driving. The offer stated that
appellant could also work within the restrictions set forth by Dr. Ryan.
13

See Sandra K. Cummings, 54 ECAB 493 (2003); see also Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on
recon., 43 ECAB 818 (1992) and 20 C.F.R. § 10.516 which codifies the procedures set forth in Moore.
14

Id.

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Dr. Ryan’s opinion was supported by Dr. Martin, appellant’s attending physician, who
agreed in an October 5, 2004 report that she could not perform her regular work duties.
Similarly, he restricted her from lifting more than 40 pounds and engaging in repetitive twisting,
bending and stooping. The Board finds that the Office met its burden of proof to establish that
the position offered appellant on August 20, 2004 was suitable work within her physical
restrictions.15
The Board further finds that the Office complied with its procedural requirements in
advising appellant that the position was suitable, providing her with the opportunity to accept the
position or provide reasons for refusing the job offer, and in notifying her of the penalty
provision of section 8106(c).16 In an August 26, 2004 letter, the Office notified appellant that the
modified rural carrier position was suitable to her physical limitations and of the consequences
for not accepting a suitable job offer pursuant to section 8106(c). It confirmed that the position
remained available. After appellant refused the offered position on August 31, 2004, the Office
advised her in a September 27, 2004 letter that her reasons for refusing the job offer was not
valid. It provided her with 15 days to accept the offered position without penality. Appellant did
not respond within the allotted time period. The Office terminated her compensation benefits by
decision issued on October 12, 2004.
The burden of proof then shifted to appellant to establish that the offered position was not
suitable work.17 Dr. Ketcham’s report stated that she experienced ongoing pain in her lower
back, neck and upper shoulder of unknown origin. He stated that she had very limited ability to
sit or stand for any prolonged period. Driving would be difficult since appellant had limited
range of motion of the head region and she was unable to lift more than 10 pounds comfortably.
Dr. Ketcham recommended sedentary work that required no lifting and limited motion of the
hands above the head. Appellant should be allowed to change positions frequently during the
day. Dr. Ketcham was not sure whether she would be able to work full time, probably only four
hours per day. He did not indicate that he had reviewed a description of the offered position.
Moreover, Dr. Ketcham did not attribute appellant’s pain to the August 14, 1996 employment
injuries. Rather, he stated that the etiology of her pain was unknown. The Board finds that
Dr. Ketcham’s report is insufficient to establish that appellant could not perform the duties of the
modified position.
Dr. Martin’s May 27, 2005 report stated that appellant continued to experience lumbar
pain and that she was totally disabled from her prior rural carrier position. Dr. Laakman’s
treatment notes and reports stated that appellant had ongoing left shoulder and knee and cervical
problems. However, neither Dr. Martin nor Dr. Laakman address whether appellant was unable
to perform the duties of the offered modified position. The Board finds that the reports of
Dr. Martin and Dr. Laakman are insufficient to establish that appellant was disable from
performing the duties of the offered rural carrier position. Accordingly, she has not met her
burden of proof.
15

Bryant F. Blackmon, supra note 9.

16

See Bruce Sanborn, 49 ECAB 176 (1997).

17

Bryant F. Blackmon, supra note 9.

8

LEGAL PRECEDENT -- ISSUE 2
Office regulations provide that in a termination under section 8106(c) of the Act a
claimant has no further entitlement to compensation under sections 8105, 8106 and 8107 of the
Act which includes payment of continuing compensation for permanent impairment of a
scheduled member.18 The Board has found that a refusal to accept suitable work constitutes a
bar to receipt of a schedule award for any impairment which may be related to the accepted
employment injury.19
ANALYSIS -- ISSUE 2
As stated, the Office terminated appellant’s wage-loss compensation on the grounds that
she refused an offer of suitable work. On March 20, 2006 appellant requested a claim for a
schedule award.
In its May 16, 2006 decision, the Office properly found that appellant was not entitled to
a schedule award under 5 U.S.C. § 8107 as she refused an offer of suitable work. With regard to
schedule awards, the Board has held that monetary compensation payable to an employee under
section 8107 are payments made from the Employees’ Compensation Fund and are, therefore,
subject to the penalty provision of section 8106(c).20 The Board, therefore, finds that appellant’s
refusal to accept suitable work constitutes a bar to her receipt of a schedule award for any
impairment which may be related to the accepted employment injuries following the October 12,
2004 termination decision.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation benefits
effective October 12, 2004 on the grounds that she refused an offer of suitable work, pursuant to
5 U.S.C. § 8106(c)(2). The Board further finds that the Office properly denied appellant’s
entitlement to schedule award compensation.

18

5 U.S.C. § 8106(c). See also 20 C.F.R. § 10.517(a).

19

Stephen R. Lubin, 43 ECAB 564 (1992).

20

Id. See Sandra A. Sutphen, 49 ECAB 174 (1997).

9

ORDER
IT IS HEREBY ORDERED THAT the May 16, 2006 and August 12, 2005 decisions
of the Office of Workers’ Compensation Programs are affirmed.

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.U., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, St. Louis, MO, Employer
__________________________________________

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

Docket No. 13-2086
Issued: February 11, 2014

Case Submitted on the Record

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

JURISDICTION
On September 13, 2013 appellant, through his attorney, filed a timely appeal from a
July 15, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
granting him 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 this case.
ISSUE
The issue is whether appellant has more than a one percent permanent impairment of
each arm, for which he received schedule awards.
FACTUAL HISTORY
This case has previously been before the Board. In decisions dated March 15 and
December 20, 2006, March 19, 2008 and July 27, 2010, the Board affirmed OWCP’s decisions
1

5 U.S.C. § 8101 et seq.

finding that appellant did not establish bilateral carpal tunnel syndrome causally related to
factors of his federal employment.2 By order dated February 15, 2012, the Board set aside a
March 22, 2011 decision that improperly informed appellant of his appeal rights.3 It remanded
the case for an appropriate decision on his request for reconsideration. The facts of the case as
set forth in the Board’s prior decisions and order are hereby incorporated by reference.
In a decision dated April 10, 2012, OWCP vacated its September 25, 2009 decision and
accepted appellant’s claim for bilateral carpal tunnel syndrome.
On May 4, 2012 appellant filed a claim for a schedule award. By letter dated July 26,
2012, OWCP referred him to Dr. Charles Mannis, a Board-certified orthopedic surgeon, for a
second opinion examination. In a report dated August 13, 2012, Dr. Mannis discussed
appellant’s history of hand tingling and pain in 2004. He noted that electrodiagnostic testing was
normal but that a clinical evaluation showed carpal tunnel syndrome bilaterally, which was
confirmed by subsequent bilateral carpal tunnel releases around 2005. On examination,
Dr. Mannis found no tenderness and a full range of motion of the wrists and fingers bilaterally
without swelling. He further found good pinch strength, grip strength of 3/5 with no thenar
eminence atrophy or weakness. Dr. Mannis stated, “Sensory evaluation to pinprick reveals
hypoesthesia over the radial and median nerve distribution bilaterally. Ulnar nerve sensation
appears to be unremarkable.” He diagnosed “status post bilateral carpal tunnel release[s] with
mild residual hypoesthesia.” Dr. Mannis applied Table 15-23 on page 449 of the American
Medical Association, Guides to the Evaluation of Permanent Impairment, (6th ed. 2009)
(A.M.A., Guides), and found that appellant had a two percent permanent impairment of each
upper extremity.
On September 4, 2012 Dr. Daniel D. Zimmerman, an OWCP medical adviser, informed
Dr. Mannis that it was not appropriate to rate appellant’s impairment due to carpal tunnel
syndrome using Table 15-23 of the A.M.A., Guides as he had normal electrodiagnostic studies.
He advised that the impairment could be rated using Section 15.2 of the A.M.A., Guides and
requested a supplemental opinion.
In a report received October 16, 2012, Dr. Mannis identified a class 1 impairment due to
wrist pain using the wrist regional grade set forth in Table 15-3 on page 395 of the A.M.A.,
Guides, which yielded a default value of one percent. He found a grade modifier of two for
functional history and physical examination based on residual hypoesthesia at the median nerve,
and a grade modifier of zero for clinical studies. Utilizing the net adjustment formula discussed
above, (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX) or (2-1) + (2-1) + (0-1) = 1, yielded an
adjustment of one, for a one percent impairment of each arm.

2

Docket No. 06-328 (issued March 15, 2006); Docket No. 06-1999 (issued December 20, 2006); Docket No.
07-2326 (issued March 19, 2008); Docket No. 10-144 (issued July 27, 2010). On May 25, 2005 appellant, then a
42-year-old medical technologist, filed an occupational disease claim alleging that he sustained a repetitive injury to
both hands in the course of his federal employment.
3

Order Remanding Case, Docket No. 11-1228 (issued February 15, 2012).

2

On October 16, 2012 Dr. Zimmerman concurred with the one percent permanent
impairment of each upper extremity rated by Dr. Mannis.
In an impairment evaluation dated August 2, 2012, received by OWCP on October 26,
2012, Dr. Neil Allen, a Board-certified internist and neurologist, discussed appellant’s
complaints of numbness and weakness in the hands bilaterally. On examination of the left wrist,
he found mild thenar and hyothenar atrophy, a loss of two-point discrimination, and a loss of
sensation at the palmar hand surface. For the right wrist, Dr. Allen found mild thenar atrophy
and reduced two-point discrimination over the first digit, and a loss of sensation in the thumb,
thenar and digits. He found a negative Phalen’s and reverse Phalen’s test bilaterally and
measured range of motion of both wrists. Dr. Allen concluded that appellant had a 23 percent
bilateral wrist impairment due to loss of range of motion of the wrists according to Table 15-32
on page 473. He adjusted the impairment upward based on pain with minimal activity and a
QuickDASH score of 66, to find a final impairment rating of 25 percent bilaterally.
On November 14, 2012 Dr. Zimmerman noted that Dr. Allen relied upon range of motion
in determining the extent of impairment without providing measurements for either passive range
of motion or multiple measurements for range of motion as required under Chapter 15. He thus
found that the range of motion measurements lacked credibility and advised that the prior right
and left upper extremity finding in October 2012 should not be modified.
By decision dated December 27, 2012, OWCP granted appellant a schedule award for a
one percent permanent impairment to each upper extremity. The period of the awards ran for
6.24 weeks from August 13 to September 25, 2012.
On January 3, 2013 appellant, through his attorney, requested a telephone hearing before
an OWCP hearing representative. At the telephone hearing, held on April 19, 2013, counsel
contended that Dr. Allen’s August 2, 2012 report established that appellant had more than a one
percent impairment of each extremity. Counsel further asserted that the A.M.A., Guides allowed
the use of range of motion to rate his impairment and that it should be used as it yielded the more
favorable result. He indicated that Dr. Allen had prepared an additional report addressing
Dr. Mannis’ findings.
In a supplemental report dated January 22, 2013, received by OWCP on May 6, 2013,
Dr. Allen advised that the diagnosis-based impairment (DBI) grid used by Dr. Mannis to rate
appellant’s impairment contained an asterisk, which indicated that range of motion could also be
used as a stand-alone rating. He asserted, “As [appellant] has suffered a significant range of
motion impairment in his wrists, the range of motion method would be the most appropriate
mechanism in rating [his] impairment rather than the DBI method as outlined in the [A.M.A.,
Guides].”
In a report dated July 15, 2013, an OWCP hearing representative affirmed the
December 27, 2012 decision.

3

LEGAL PRECEDENT
The schedule award provision of FECA,4 and its implementing federal regulations,5 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.6 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.7
The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE) and Clinical Studies (GMCS).8 The net adjustment formula is
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).
The A.M.A., Guides at Section 15.4(f) provides:
“The diagnosis of a focal neuropathy syndrome, “must be documented by sensory
and motor nerve conduction studies and/or needle EMG [electromyogram] in
order to be rated as impairment, using this section. If nerve conduction testing
has not been performed or does not meet this section’s diagnostic criteria, there is
no ratable impairment from this section. These cases may still be rated in Section
15.2, Diagnosis-Based Impairment, and with the appropriate regional grid, using
the diagnosis of nonspecific hand, wrist, or elbow pain, depending on the affected
region.”9
The A.M.A., Guides at Section 15.7 provides:
“Range of motion should be measured after a ‘warm up,’ in which the individual
moves the joint through its maximum range of motion at least [three] times. The
range of motion examination is then performed by recording the active
measurements from [three] separate range of motion efforts…. All measurements
should fall within 10 [degrees] of the mean of these three measurements. The

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at 10.404(a).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
8

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

9

Id. at 445.

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maximum observed measurement is used to determine the range of motion
impairment.”10
ANALYSIS
OWCP accepted that appellant sustained bilateral carpal tunnel syndrome causally related
to factors of his federal employment. On May 4, 2012 appellant filed a claim for a schedule
award. On August 13, 2012 Dr. Mannis, an OWCP referral physician, reviewed appellant’s
history of normal electrodiagnostic testing but positive clinical findings of carpal tunnel
syndrome with bilateral carpal tunnel releases in 2005. He measured normal range of motion on
examination without atrophy, grip weakness or swelling. Dr. Mannis determined that appellant
had hypoesthesia over the radial and median nerve bilaterally. He diagnosed mild residual
hypoesthesia following bilateral carpal tunnel releases. Citing Table 15-23 on page 449 of the
A.M.A., Guides, Dr. Mannis determined that appellant had a two percent permanent impairment
of each upper extremity.
On September 4, 2012 Dr. Zimmerman found that the A.M.A., Guides did not provide a
rating for carpal tunnel syndrome using Table 15-23 with normal electrodiagnostic testing. In a
supplemental report dated October 16, 2012, Dr. Mannis determined that appellant had a class 1
impairment due to wrist pain according to the wrist regional grid at Table 15-3 on page 395,
which yielded a default impairment value of one percent. He applied grade modifiers of two for
functional history and physical examination based on his finding of residual hypoesthesia and a
grade modifier of zero for clinical studies, which yielded an adjustment of one, for a one percent
permanent impairment of each upper extremity.11 As appellant had normal electrodiagnostic
testing, it was appropriate to rate his impairment using the diagnosis of wrist pain set forth at
Section 15.2.12 On October 16, 2012 Dr. Zimmerman concurred with Dr. Mannis’ finding of a
one percent upper extremity impairment. The Board finds that Dr. Mannis’ report constitutes the
weight of the evidence and establishes that appellant has no more than a one percent permanent
impairment of each upper extremity.
In an August 2, 2012 impairment evaluation, Dr. Allen found mild thenar and hypothenar
atrophy of the wrists, reduced sensation bilaterally and a loss of range of motion. He concluded
that appellant had a 23 percent permanent impairment of the bilateral wrists due to reduced
motion according to Table 15-32 on page 473 of the A.M.A., Guides, which he adjusted upward
due to pain and a QuickDASH score of 66 to find a 25 percent bilateral wrist impairment. In a
supplemental report dated January 22, 2013, Dr. Allen maintained that range of motion could be
used as an alternative rating method pursuant to the DBI grid. Dr. Zimmerman reviewed
Dr. Allen’s report and determined that he did not provide valid range of motion measurements as
required by section 15.7a of the A.M.A., Guides. He found that Dr. Allen’s range-of-motion
measurements were not reliable and that OWCP should not alter the rating provided by
10

Id. at 464.

11

Dr. Mannis used the net adjustment formula (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX), or (2-1) + (2-1)
+ (0-1) = 1, to find a positive adjustment of one.
12

See supra note 10.

5

Dr. Mannis. The A.M.A., Guides require the rating physician to obtain three measurements per
joint motion. The measurements are then averaged and each of the three measurements shown
must be within 10 degrees of the calculated average. The maximum observed measurement is
then used to determine the range of motion impairment. It does not appear from Dr. Allen’s
report that the physician obtained three joint measurements. Consequently, his report does not
conform to the A.M.A., Guides and is of diminished probative value.13 The Board finds that
appellant has a one percent permanent impairment of each upper extremity. There is no
probative evidence showing a greater impairment.
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 no more than a one percent permanent impairment of
each upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the July 15, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 11, 2014
Washington, DC

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

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

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

13

See Mary L. Henninger, 52 ECAB 408 (2001).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Silver Spring, MD, Employer
__________________________________________

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

Docket No. 21-0713
Issued: December 23, 2021

Case Submitted on the Record

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

JURISDICTION
On April 9, 2021 appellant filed a timely appeal from a November 24, 2020 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from the last merit decision, dated September 17, 2019, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.
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.
FACTUAL HISTORY
On April 7, 2017 appellant, then a 28-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that on March 31, 2017 she sustained a right ankle sprain when she slipped
1

5 U.S.C. § 8101 et seq.

down a wet hill during the rain while in the performance of duty. She stopped work on the date of
the alleged injury. OWCP initially accepted appellant’s claim for sprain of the right ankle and
subsequently expanded the acceptance of the claim to include post-traumatic plantar fasciitis and
post-traumatic instability of the right ankle with osteochondral damage.
On June 24, 2019 appellant filed claims for compensation (Form CA-7) for disability from
December 28, 2018 through April 8, 2019 and April 9 through June 21, 2019 as a result of her
accepted employment injury.
OWCP subsequently received medical evidence.
In a July 3, 2019 letter, OWCP referenced appellant’s claim for wage-loss compensation
for disability from work for the period December 21, 2018 through April 8, 2019. It authorized
payment for 2.87 hours on January 23, 2019 and 4.26 hours on February 22, 2019; it further noted,
however, that the medical evidence of record was insufficient to establish the remainder of h er
claim for four hours on December 28, 2018.2 OWCP advised appellant of the type of medical
evidence needed to support her claim and afforded her 30 days to submit the necessary evidence.
In a separate development letter of even date, OWCP advised appellant that no evidence
had been submitted to establish her claim for disability commencing April 9, 2019. It afforded her
30 days to submit the requested evidence.
OWCP thereafter received additional medical evidence.
On August 13, 2019 appellant filed additional Form CA-7 claims for wage-loss
compensation and submitted medical evidence in support of her claims.
In a September 5, 2019 decision, OWCP denied, in part, appellant’s claim for wage-loss
compensation for disability from work from December 28, 2018 through April 8, 2019. It found
that the medical evidence of record was sufficient to establish that she sought treatment of her
accepted employment conditions for 2.87 hours on January 23, 2019 and 4.26 hours on
February 22, 2019. OWCP further found, however, that the medical evidence of record was
insufficient to support that appellant sought treatment for four hours on December 28, 2018. It
noted that she did not submit medical evidence related to her treatment on December 28, 2018 in
response to its July 3, 2019 development letter. OWCP advised that the employing establishment
had not certified any other dates or hours claimed and, therefore, compensation was not payable
for the claimed dates and hours, and no formal decision was necessary.
Appellant continued to file Form CA-7 claims for wage-loss compensation.
By decision dated September 17, 2019, OWCP denied appellant’s claim for wage-loss
compensation for disability commencing April 9, 2019, finding that the medical evidence of record

2

On August 27, 2019 OWCP paid appellant wage-loss compensation for time lost from work, 2.18 hours on
December 21, 2018 and 3.5 hours on March 29, 2019.

2

was insufficient to establish disability from work due to the accepted March 31, 2017 employment
injury.
Appellant subsequently submitted medical evidence dated from November 19, 2018
through March 24, 2020, which addressed her right ankle conditions, disability from work
commencing on September 18, 2019 and March 24, 2020, and work restrictions.
On September 9, 2020 appellant requested reconsideration. Her appeal request form noted
that she was requesting reconsideration of OWCP’s September 5, 2019 decision, which addressed
her claim for disability for the period December 28, 2018 through April 8, 2019. In an
accompanying letter dated September 4, 2020, appellant noted that she had “submitted a CA-7 for
compensation dated April 8, 2019 -- October 4, 2019.” She contended that she remained disabled
from her letter carrier duties and “should be able to receive compensation starting May 2019 -October 4, 2019, due to [her] physician’s orders and the worsening of [her] ankle.”
OWCP received a February 14, 2010 report by Dr. Paul S. Cooper, a Board-certified
orthopedic surgeon, who noted a history of the accepted March 31, 2017 employment injury,
discussed findings on examination of appellant’s right ankle, diagnosed the accepted condition of
instability of right ankle joint, and recommended arthroscopic right ankle surgery.
By decision dated November 24, 2020, OWCP denied appellant’s reconsideration request,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.3 This discretionary authority, however, is subject to certain restrictions. A request
for reconsideration must be received within one year of the date of OWCP’s decision for which
review is sought. 4 Timeliness is determined by the document receipt date (i.e., the “received date”
in OWCP’s Integrated Federal Employees’ Compensation System (iFECS)). 5 Imposition of this
one-year filing limitation does not constitute an abuse of discretion. 6
When a request for reconsideration is untimely, OWCP undertakes a limited review to
determine whether the request demonstrates clear evidence that OWCP’s most recent merit
decision was in error. 7 OWCP’s procedures provide that it will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the
3

5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
4

20 C.F.R. § 10.607(a).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016).

6

G.G., Docket No. 18-1074 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
7

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB
499, 501-02 (1990).

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claimant’s request for reconsideration demonstrates clear evidence of error on the part of OWCP. 8
In this regard, OWCP will limit its focus to a review of how the newly submitted evidence bears
on the prior evidence of record.9
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. 10 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. Evidence which 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 merely to show that the evidence could be construed so
as to 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 cle ar evidence
of error, the evidence submitted must not only be of sufficient probative value to create a conflict
in medical opinion or establish a clear procedural error, but must be of sufficient probative value
to shift the weight of the evidence in favor of the claimant and raise a substantial question as to
the correctness of OWCP’s decision. The Board makes an independent determination as to
whether a claimant has demonstrated clear evidence of error on the part of OWCP. 11
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of
OWCP’s September 5, 2019 decision, finding that it was untimely filed and failed to demonstrate
clear evidence of error.
OWCP’s regulations12 and procedures 13 establish a one-year time limit for requesting
reconsideration, which begins on the date of the last merit decision issued in the case. A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues. 14
The most recent merit decision pertaining to appellant’s claim for wage-loss compensation for
disability on December 28, 2018 was dated September 5, 2019. As OWCP received her request
for reconsideration on September 9, 2020, more than one year after the September 5, 2019
decision, the Board finds that it was untimely filed. Because appellant’s request was untimely
8

L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also id. at § 10.607(b); supra note 5 at Chapter 2.1602.5 (February 2016).
9

J.M., Docket No. 19-1842 (issued April 23, 2020); J.W., Docket No. 18-0703 (issued November 14, 2018);
Robert G. Burns, 57 ECAB 657 (2006).
10

S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 5 at Chapter 2.1602.5(a) (February 2016).

11

U.C., Docket No. 19-1753 (issued June 10, 2020).

12

20 C.F.R. § 10.607(a); see F.N., Docket No. 18-1543 (issued March 6, 2019); Alberta Dukes, 56 ECAB
247 (2005).
13

Supra note 5 at Chapter 2.1602.4 (February 2016); see L.A., Docket No. 19-0471 (issued October 29, 2019);
Veletta C. Coleman, 48 ECAB 367, 370 (1997).
14

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

4

filed, she must demonstrate clear evidence of error on the part of OWCP in denying her claim for
wage-loss compensation on the claimed date.
In support of her untimely request for reconsideration of OWCP’s September 5, 2019
decision, appellant submitted Dr. Cooper’s February 14, 2020 report. Dr. Cooper diagnosed the
accepted condition of instability of right ankle joint and recommended arthroscopic right ankle
surgery. He did not, however, offer a medical opinion addressing whether appellant’s claimed
disability on December 28, 2018 was due to the accepted March 31, 2017 employment injury. As
such, this evidence does not address the relevant issue. 15
OWCP also received evidence regarding appellant’s medical status during the period
November 19, 2018 through March 24, 2020. None of the evidence manifests on its face that it
committed an error in denying appellant’s claim for disability on December 28, 2018. Appellant
has not submitted evidence of sufficient probative value to raise a substantial question as to the
correctness of OWCP’s decision. Thus, the evidence is insufficient to demonstrate clear evidence
of error.16
The Board, thus, finds that appellant has not raised an argument or submitted any evidence
that manifests on its face that OWCP committed an error in denying her claim for disability
compensation.17 Thus, the Board finds that her untimely request for reconsideration of OWCP’s
September 5, 2019 decision failed to demonstrate clear evidence of error. 18
The Board notes, however, that appellant’s September 9, 2020 request for reconsideration
also contested OWCP’s September 17, 2019 decision, which denied appellant’s claim for
compensation for disability commencing April 9, 2019. In her attached statement, appellant noted
that she was contesting the denial of her claim for compensation for the period May through
October 2019, which is part of the period covered by the September 17, 2019 decision.
Accordingly, as OWCP has not addressed appellant’s request for reconsideration of OWCP’s
September 17, 2019 decision, the Board will set aside the September 9, 2020 decision in part and
remand the case for OWCP to review the evidence, make findings of fact, and provide reasons for
its decision, pursuant to the standards set f orth in section 5 U.S.C. § 8124(a) and 20 C.F.R.
§ 10.126. After this and other such further development as deemed necessary, it shall issue an
appropriate decision.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
OWCP’s September 5, 2019 decision, finding that it was untimely filed and failed to demonstrate

15

T.C., Docket No. 19-1709 (issued June 5, 2020); B.W., Docket No. 19-0626 (issued March 4, 2020).

16

J.C., Docket No. 20-1250 (issued May 24, 2021); W.D., Docket No. 19-0062 (issued April 15, 2019).

17

J.C., id.

18

Id.

5

clear evidence of error. The Board further finds that this case is not in posture for decision with
regard to appellant’s request for reconsideration of OWCP’s September 17, 2019 decision.
ORDER
IT IS HEREBY ORDERED THAT the November 24, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further proceedings consistent with this decision of the Board.
Issued: December 23, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.G., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
Dallas, TX, Employer
__________________________________________

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

Docket Nos. 07-938 and
07-1493
Issued: October 11, 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 February 21, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated November 17, 2006. This appeal was docketed as
No. 07-938. On May 9, 2007 appellant filed a timely appeal of a February 2, 2007 Office merit
decision. This appeal was docketed as No. 07-1493. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly denied modification of a June 7, 2006
wage-earning capacity determination; and (2) whether the Office properly determined appellant’s
current pay rate for the date-of-injury position as of July 12, 2005.
FACTUAL HISTORY
The case has been before the Board on prior appeals. In a November 12, 2004 decision,
the Board reversed an October 21, 2003 Office decision terminating compensation on the

grounds that appellant refused an offer of suitable work.1 By decision dated January 17, 2007,
the Board remanded the case for further development on a rate of pay issue.2 The Board noted
that it was unclear how the Office determined the current pay rate for the date-of-injury position.
The history of the case is contained in the Board’s prior decisions and is incorporated herein by
reference.
Appellant returned to a light-duty position at three hours per day on July 12, 2005. On
April 3, 2006 appellant returned to a full-time position as a receptionist. By decision dated
June 7, 2006, the Office determined that the actual earnings in the receptionist position fairly and
reasonably represented her wage-earning capacity.3
The record contains a hospital emergency room report indicating that appellant was
admitted on June 21, 2006 and treated for swollen lymph nodes. In a note dated July 13, 2006,
Dr. Javier Valadez, an internist, indicated that appellant was unable to work due to a cervical
strain and hypertension. Dr. Valadez reported that appellant was released to work as of
July 17, 2006.
In a report dated July 18, 2006, Dr. Craig Callewart, an orthopedic surgeon, provided
results on examination and diagnosed status post anterior cervical 4-5 decompression and fusion
with cage on November 7, 2002 and left volar ganglion.4 He stated that appellant had been off
work due to high blood pressure. In a July 18, 2006 note, Dr. Callewart indicated that appellant
should remain off work as diagnostic testing was pending. The record contains a cervical
magnetic resonance imaging (MRI) scan dated July 21, 2006.
On August 2, 2006 appellant filed a recurrence of disability claim (Form CA-2a),
reporting a date of recurrence of June 21, 2006 and a work stoppage as of July 13, 2006.
Appellant stated that she went to the emergency room on June 21, 2006.
In a note dated August 11, 2006, Dr. Callewart indicated that appellant had been off work
for three to four weeks. He indicated that appellant would be released to work four hours per
day.
By decision dated November 17, 2006, the Office denied the claim for compensation.
The Office found that the evidence was not sufficient to establish a modification of the wageearning capacity determination or to establish a recurrence of disability as of July 13, 2006.
By decision dated February 2, 2007, the Office made a determination with respect to
appellant’s entitlement to compensation on July 12, 2005 when she returned to work at three
hours per day. In applying the Shadrick formula, the Office found that the date of injury was
1

Docket No. 04-341 (issued November 12, 2004).

2

Docket No. 06-129 (issued January 17, 2007).

3

Appellant did not request review of this decision.

4

The accepted conditions in this case are bilateral carpal tunnel syndrome, cervical strain and displacement of
C5-6 disc.

2

July 31, 1997, when appellant was last exposed to the identified employment factors. The Office
indicated that appellant was at that time a GS (General Services) Grade 7, Step 8 employee and
the current pay rate as of July 12, 2005 for that grade and step was $834.25 per week.
LEGAL PRECEDENT -- ISSUE 1
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was, in fact, erroneous.5 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.6
ANALYSIS -- ISSUE 1
The Office issued a wage-earning capacity determination on June 7, 2006. Appellant
thereafter, filed a recurrence of disability claim commencing July 13, 2006. The initial issue is
whether the wage-earning capacity determination should be modified.7 Appellant has not argued
that the original determination was erroneous. She asserts that the medical evidence shows that
she was disabled. In this regard, however, the medical evidence is not sufficient to establish a
material change in the nature and extent of the employment-related condition.
Appellant indicated that she received emergency room treatment on June 21, 2006 but the
record does not contain probative evidence with respect to treatment for an employment-related
condition on June 21, 2006. The record indicated that appellant stopped working on July 13,
2006 and was treated by Dr. Valadez on that date. Dr. Valadez briefly referred to cervical strain
and hypertension, without providing detail. He did not provide a history and a reasoned opinion
establishing a change in an employment-related condition of July 13, 2006. Dr. Callewart
reported on July 18, 2006 that appellant had been off work due to high blood pressure. He did
not discuss an employment-related condition and provide a reasoned medical opinion
establishing a material change in the condition. There is no medical evidence of record that is
sufficient to establish a modification of the wage-earning capacity determination as of
July 13, 2006.
The Board notes that, even if the evidence is not sufficient to warrant a modification of a
wage-earning capacity determination, the evidence may be sufficient to establish a limited period
of disability.8 As appellant was working a light-duty job, she must show a change in the nature
and extent of the injury-related condition.9 The evidence is not sufficient to establish a

5

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

6

Id.

7

See Katherine T. Kreger, 55 ECAB 633 (2004).

8

Id.

9

Terry R. Hedman, 38 ECAB 222 (1986).

3

recurrence of disability on July 13, 2006. As noted above, the medical evidence was of limited
probative value and did not show a change in the employment-related condition.
Based on the evidence of record, therefore, appellant has not established an employmentrelated disability commencing July 13, 2006. The Office properly determined that modification
of the wage-earning capacity determination was not warranted and appellant had not established
a recurrence of disability as of July 13, 2006.
LEGAL PRECEDENT -- ISSUE 2
When a claimant has earnings, the Office may reduce continuing compensation in accord
with the Shadrick10 formula. The formula has been codified at 20 C.F.R. § 10.403. The Office
first calculates an employee’s wage-earning capacity in terms of percentage by dividing the
employee’s earnings by the current pay rate for the date-of-injury job; the wage-earning capacity
in terms of dollars is computed by multiplying the pay rate for compensation purposes by the
percentage of wage-earning capacity, and the resulting dollar amount is subtracted from the pay
rate for compensation purposes to obtain the loss of wage-earning capacity.
ANALYSIS -- ISSUE 2
The Office’s February 2, 2007 decision was issued following the Board’s January 17,
2007 decision remanding the case with respect to the proper calculation under Shadrick. The
Board noted that there were time periods at issue: August 31, 2004 to April 1, 2005 and the
period commencing July 12, 2005. The Office indicated that in its February 2, 2007 decision it
was addressing the period commencing July 12, 2005 and they would address the August 31,
2004 to April 1, 2005 period in a separate decision.
As noted above, the Shadrick formula requires a comparison between current actual
earnings and the current pay rate for the date-of-injury job. The Board indicated in its
January 17, 2007 decision that there was confusion regarding the date-of-injury, as the Office
reported the date of injury to be October 1, 1996. On the May 21, 1997 claim form appellant had
reported that she became aware of the condition in October 1996. As the Board noted, if
appellant continues to be exposed to the identified employment factors, the date of injury would
be the date of last exposure.11
On remand the Office noted that appellant had stopped working on July 31, 1997 when
she underwent left carpal tunnel release surgery. On October 2, 1997 she underwent right carpal
tunnel release and then returned to part-time light-duty work on November 13, 1997. Therefore,
the record does support a finding that the date of last exposure to the identified employment
factors was July 31, 1997. A claim for compensation dated July 30, 1997 indicated that
appellant was at that time a GS Grade 7, Step 8 employee, earning $31,728.00 annually.
Accordingly, the current pay rate for the date-of-injury job as of July 12, 2005 would be the pay
10

Albert C. Shadrick, 5 ECAB 376 (1953). See Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reemployment, Determining Wage-Earning Capacity, Chapter 2.814.7(d) (June 1996).
11

Barbara A. Dunnavant, 48 ECAB 517 (1997).

4

rate for a GS Step 7, Grade 8 employee in appellant’s locality on July 12, 2005. The record
indicates that this would be $43,381.00 annually or $834.25 per week.
The Board, therefore, finds that the Office properly explained its calculations and applied
the Shadrick formula with respect to an offset of compensation for actual earnings as of
July 12, 2005. The date of injury is July 31, 1997 and the Office determined that the current pay
rate for the date-of-injury job based on the evidence of record.
CONCLUSION
Appellant did not establish that a modification of the June 7, 2006 wage-earning
determination was warranted. With respect to the offset of compensation based on actual
earnings commencing July 12, 2005, the Office properly determined the date of injury and
current pay rate for the date-of-injury position.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 2, 2007 and November 17, 2006 are affirmed.
Issued: October 11, 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

5


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

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

Docket No. 13-2002
Issued: April 23, 2014

Case Submitted on the Record

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

JURISDICTION
On August 29, 2013 appellant timely appealed the July 3, 2013 merit decision of the
Office of Workers’ Compensation Programs (OWCP) which found an overpayment of benefits.
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 claim.
ISSUES
The issues are: (1) whether appellant received an overpayment of $27,295.68 for the
period July 31, 2011 to April 6, 2013; and (2) whether OWCP properly denied waiver of
recovery of the overpayment.
FACTUAL HISTORY
Appellant, a 64-year-old mail handler, injured her right hip and right wrist in the
performance of duty on February 22, 2008.2 OWCP accepted her claim for closed fracture right
1

5 U.S.C. §§ 8101-8193 (2006).

2

Appellant was hit by a tow motor and knocked to the ground.

carpal bone and closed fracture right neck of femur.3 It paid wage-loss compensation and placed
appellant on the periodic compensation rolls effective April 13, 2008. In a decision dated
July 21, 2011, OWCP terminated her wage-loss compensation and medical benefits based on her
accepted conditions having resolved effective July 31, 2011.4 However, it neglected to remove
appellant from the periodic rolls, and thus, she continued to receive wage-loss compensation
through April 6, 2013. The total compensation paid during the 20-month post-termination period
was $27,295.68.
On May 1, 2013 OWCP issued a preliminary determination that appellant was overpaid
$27,295.68 from July 31, 2011 to April 6, 2013. It made a preliminary finding that she was
without fault in the creation of the overpayment.
Following the preliminary determination, there was telephone contact (CA-110) between
appellant and the senior claims examiner. Appellant telephoned OWCP on May 6, 2013 her call
was returned on May 8, 2013. The claims examiner described appellant as an elderly lady who
clearly did not understand why her compensation was stopped or why there was an overpayment.
She attempted to explain to appellant why and how the overpayment occurred. The claims
examiner also encouraged appellant to exercise her appeal rights and submit a completed
overpayment questionnaire. She advised appellant to obtain someone to assist her in reviewing
the preliminary determination so she could have a better understanding of her appeal rights.
On May 13, 2013 appellant requested a telephone conference regarding the May 1, 2013
preliminary determination. She also submitted an overpayment recovery questionnaire (Form
OWCP-20), together with billing statements for various utilities. OWCP received appellant’s
request and accompanying financial information on May 24, 2013.
Appellant made a follow-up call on May 28, 2013. On May 29, 2013 the senior claims
examiner acknowledged receipt of appellant’s overpayment questionnaire and attached
documentation and she was advised that the information would be reviewed.
Appellant called OWCP again on June 26, 2013. The senior claims examiner reiterated
that OWCP received the questionnaire. Appellant was told that she was “still responsible for the
overpayment,” and advised to appeal the final overpayment decision once it was issued. The
senior claims examiner noted that appellant should consider having someone act as her
representative to assist with her workers’ compensation claim and appeal.
On July 3, 2013 OWCP issued a final decision finding an overpayment in the amount of
$27,295.68. Appellant was found to be without fault. OWCP also denied waiver of recovery of
the $27,295.68 overpayment. The decision noted that appellant requested a telephone
conference and that the senior claims examiner called her on May 8 and June 26, 2013 and
“discussed repayment of the overpayment and further collection efforts.” Appellant’s OWCP-20
3

On February 26, 2008 appellant underwent surgery to repair her right femoral neck fracture. She also had a
follow-up procedure on April 27, 2009 to remove hardware from her right hip.
4

OWCP relied on the August 4, 2010 report of Dr. Frank L. Barnes, a Board-certified orthopedic surgeon and
impartial medical examiner, who found that appellant’s accepted fractures had all healed and that she returned to her
preinjury status. Appellant was capable of resuming her date-of-injury position without restriction and she required
no further medical treatment.

2

revealed no assets or current monthly income. The only income she previously had was what
OWCP paid her. The July 3, 2013 decision also noted that appellant had monthly expenses of
$1,067.88. OWCP indicated that the information appellant provided was insufficient to support
waiver of recovery. The decision further indicated that the overpayment would be deducted
from future compensation payments.
LEGAL PRECEDENT - ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.5 Section 8105(a) of FECA provides that if the disability is total, the United
States shall pay the employee monthly monetary compensation during the disability.6 Section
8129(a) of FECA provides authority for recovery of an overpayment made to an individual
“because of an error of fact or law....”7 An overpayment arises where OWCP has issued a final
decision terminating benefits, but subsequently fails to stop payment of wage-loss compensation
in accordance with the terms of the decision.8
ANALYSIS -- ISSUE 1
In July 2011 OWCP issued a decision terminating appellant’s compensation benefits
effective July 31, 2011.9 Despite the decision terminating benefits, it failed to remove her from
the periodic compensation rolls. During the period July 31, 2011 to April 6, 2013, appellant had
received $27,295.68 in disability compensation. Having previously terminated all benefits,
effective July 31, 2011, OWCP properly found that she received an overpayment of
compensation. It determined that appellant was without fault in the creation of the overpayment.
The Board will affirm the fact and amount of the overpayment.
LEGAL PRECEDENT -- ISSUE 2
An individual who is without fault in creating or accepting an overpayment is nonetheless
subject to recovery of the overpayment unless adjustment or recovery would defeat the purpose
of FECA or would be against equity and good conscience.10 Recovery of an overpayment will
defeat the purpose of FECA if such recovery would cause hardship to a current or former
beneficiary because the beneficiary from whom OWCP seeks recovery needs substantially all of
his or her current income, including compensation benefits, to meet current ordinary and
5

5 U.S.C. § 8102(a).

6

Id. at § 8105(a).

7

Id. at § 8129(a). See also D.R., 59 ECAB 148 (2007).

8

The fact that OWCP may have erred in making the overpayment does not, by itself, relieve the individual who
received the overpayment from liability for repayment. See 20 C.F.R. § 10.435(a).
9

The propriety of OWCP’s July 21, 2011 decision terminating benefits is not before the Board. That decision
predated the current appeal by more than 180 days, and thus, it falls outside the Board’s jurisdiction. See 20 C.F.R.
§ 501.3(e). Moreover, since terminating benefits more than two and one-half years ago, OWCP has not specifically
addressed whether appellant has demonstrated continuing employment-related disability on or after July 31, 2011.
10

5 U.S.C. § 8129(b); 20 C.F.R. §§ 10.433, 10.434, 10.436 and 10.437.

3

necessary living expenses and the beneficiary’s assets do not exceed a specified amount as
determined by OWCP.11 Additionally, recovery of an overpayment is considered to be against
equity and good conscience when any individual who received an overpayment would
experience severe financial hardship in attempting to repay the debt or when any individual, in
reliance on such payment or on notice that such payments would be made, relinquished a
valuable right or changed his or her position for the worse.12
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by OWCP.13 This information is necessary for
determining whether a waiver of recovery of the overpayment is warranted.14 The information is
also used to determine an appropriate repayment schedule, if necessary.15 Failure to submit the
requested information within 30 days of the request shall result in denial of waiver16 and further
request for waiver shall be considered until the requested information is furnished.17
ANALYSIS -- ISSUE 2
OWCP found appellant to be without fault in the creation of the overpayment. The issue
of whether she is entitled to waiver of recovery is not in posture for decision. OWCP denied
waiver without providing a clear explanation for its determination.18 The July 3, 2013 decision
noted that the information appellant provided was insufficient to support waiver of recovery.
The overpayment recovery questionnaire listed no current income and no assets. Appellant’s
FECA benefits had been her only source of income according to the OWCP-20 she submitted.
An April 15, 2013 financial disclosure statement (CA-1032) also showed no other source of
income. Without any assets or current source of income, it is unclear how appellant meets her
reported monthly expenses of $1,067.88, as well as repay $27,295.68. Further, the July 3, 2013
decision stated that the overpayment would be deducted “from future compensation payments.”
As noted, appellant was no longer in receipt of FECA benefits that were terminated effective
July 31, 2011.
The Board cannot readily discern from either the record why OWCP found the
information appellant provided insufficient to support waiving recovery of the overpayment.
Absent an appropriate statement of reasons, the Board finds the issue of waiver not in posture for
11

20 C.F.R. § 10.436(a), (b). For an individual with no eligible dependents the asset base is $4,800.00. The base
increases to $8,000.00 for an individual with a spouse or one dependent, plus $960.00 for each additional dependent.
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6a(1)(b) (June 2009).
12

20 C.F.R. § 10.437(a), (b).

13

Id. at § 10.438(a).

14

Id.

15

Id.

16

Id. at § 10.438(b).

17

Id.

18

An OWCP decision shall contain findings of fact and a statement of reasons. 20 C.F.R. § 10.126.

4

decision.19 The case will be remanded for further consideration of appellant’s request for waiver
of recovery.
CONCLUSION
Appellant received an overpayment of $27,295.68 for the period July 31, 2011 to
April 6, 2013. The question of whether she is entitled to waiver of recovery is not in posture for
decision.
ORDER
IT IS HEREBY ORDERED THAT the July 3, 2013 decision of the Office of Workers’
Compensation Programs is affirmed in part and set aside in part. The case is remanded for
further action consistent with this decision.
Issued: April 23, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

19

Id.

5