United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
WAINWRIGHT MEMORIAL MEDICAL
CENTER, Walla Walla, WA, Employer
__________________________________________

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

Docket No. 20-1631
Issued: December 8, 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 September 16, 2020 appellant, through counsel, filed a timely appeal from an August 5,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.3

1

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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the August 5, 2020 decision, appellant submitted additional evidence to OWCP.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish a recurrence of
disability for the period May 2 through October 25, 2019, causally related to her accepted April 20,
2016 employment injury.
FACTUAL HISTORY
On April 21, 2016 appellant, then a 60-year-old registered nurse, filed a traumatic injury
claim (Form CA-1) alleging that on April 20, 2016 she sustained a lower back injury and strained
her left lower extremity when she twisted her torso when a travel van door became stuck as she
was sliding it closed while in the performance of duty. On June 7, 2016 OWCP accepted the claim
for strain of muscle, fascia, and tendon of lower back, and other unspecified complications of
medical care. On September 8, 2017 it expanded its acceptance of the claim to include lumbar
radiculopathy. OWCP paid appellant wage-loss compensation on the supplemental rolls for work
absences related to the accepted injury.
On January 2, 2018 Dr. Jason Dreyer, an osteopathic physician Board-certified in
neurosurgery, performed OWCP-authorized anterior interbody arthrodesis and fusion at T12-L1,
L1-2, L2-3, and L3-4, posterolateral arthrodesis at T12-L1, L1-2, L3-4, and L4-5, laminectomies
at L1 through L5, and posterior spinal instrumentation from T12 through L5. OWCP paid
appellant wage-loss compensation on the supplemental and periodic rolls during her recuperation.
In reports dated May 3, 2018, Dr. Michael Wilcox, a Board-certified internist, prescribed
physical therapy to treat appellant’s sacroiliac pain. He released appellant to light-duty work for
four hours a day. Dr. Wilcox restricted lifting to 20 pounds, limited sitting and standing,
proscribed bending, twisting, and crouching, and directed that appellant be allowed to change
position every 45 minutes.
On May 7, 2018 appellant returned to work for four hours a day as a modified-duty nurse.
The position required home visits and clerical duties. Appellant would be able to change position
every 45 minutes, and would carry a nurse’s bag within the 20-pound lifting restriction. OWCP
paid her wage-loss compensation for the remaining four hours a day.
On July 11, 2018 Dr. Sarah Hammil, a Board-certified obstetrician and gynecologist,
implanted an Interstim sacral stimulator unit to address refractory overactive bladder.
In a July 16, 2018 report, Dr. Wilcox continued appellant on light duty for four hours a
day. He noted that a series of sacroiliac injections 4 and physical therapy treatments had reduced
appellant’s lumbar symptoms. Dr. Wilcox decreased her lifting limitation to five pounds due to
the July 11, 2018 surgical procedure, and renewed the remainder of the May 3, 2018 work
limitations.
In an August 16, 2018 report, Dr. Wilcox noted that appellant had undergone the second
stage of the sacral stimulator procedure three weeks previously and had obtained excellent results
with urinary and fecal incontinence. She reported persistent numbness of the left lower extremity
with occasional paresthesias. Dr. Wilcox opined that appellant was ready to increase her work
4

Appellant underwent an OWCP-authorized right sacroiliac joint injection on July 9, 2018.

2

status from 4 to 6 hours a day, with a 20-pound lifting limitation, avoidance of bending, twisting,
and crouching, and the ability to reposition every 45 minutes. In a duty status report (Form CA17) of even date, he increased appellant’s work schedule to six hours a day, with lifting limited to
20 pounds, and no climbing, kneeling, bending, stooping, or twisting. Dr. Wilcox noted that
appellant would need to change position every 45 minutes.
On September 4, 2018 appellant began working light-duty work for six hours a day.
OWCP paid her wage-loss compensation for the remaining two hours a day.
In reports dated from September 27 through December 27, 2018, Dr. Wilcox found
appellant able to continue working six hours a day within the August 16, 2018 work limitations.
In a December 12, 2018 report, Dr. Stephen C. Houston, a Board-certified neurosurgeon,
noted that sacroiliac joint injections had relieved appellant’s symptoms, and that postoperative
imaging did not reveal any complications.
In a January 10, 2019 report, Dr. John-David Black, a Board-certified orthopedic surgeon,
noted appellant’s history of “multiple lumbar and cervical spinal fusions,” the most recent
procedure in January 2018. Appellant described increasing sacroiliac joint and buttock pain, with
paresthesias in the lateral thighs, left greater than right. Dr. Black noted that appellant was not
able to work more than six hours due to sacroiliac joint pain and could not sit m ore than 45 minutes
or walk further than 100 yards due to buttock pain. He diagnosed bilateral sacroiliac joint
dysfunction. Dr. Black recommended a sacroiliac joint fusion as injections and conservative care
had failed to relieve her symptoms. 5
In reports dated from January 28 through March 27, 2019, Dr. Wilcox found appellant able
to continue working for six hours a day within the prior restrictions of a 20 -pound weight limit,
avoidance of bending, twisting, and crouching, and changing position every 45 minutes. In a
March 27, 2019 report, he noted that she continued to experience significant sacroiliac pain despite
her six-hour work schedule, work restrictions, and an ergonomic desk. Appellant had difficulty
with prolonged sitting and standing. Dr. Wilcox indicated that it was “possible that she will not
be able to sustain her current work duties without the recommended sacroiliac procedure.” He
opined that appellant could continue to work six hours a day within her prior physical limitations.
On May 16, 2019 appellant filed a claim for compensation (Form CA-7) for intermittent
disability for the period April 29 through May 10, 2019. An accompanying May 17, 2019 time
analysis form (Form CA-7a) indicates that appellant claimed two hours per day of leave without
pay (LWOP) from April 29 through May 1, 2019, and four hours LWOP from May 2
through 10, 2019.
In a May 24, 2019 letter, OWCP notified appellant that it had authorized payment for two
hours a day in wage-loss compensation from April 29 through May 10, 2019. It found, however,
that the medical evidence of record did not support a worsening of her condition effective May 2,
2019 such that she could no longer work for six hours a day. OWCP a fforded appellant 30 days
to submit additional evidence in support of her claim for increased disability.

5

In a February 13, 2019 report, Dr. Black opined that the April 20, 2016 employment injury caused sacroiliitis
requiring surgical joint fusion.

3

Appellant subsequently submitted a May 24, 2019 Form CA-7 claiming four hours a day
of wage-loss compensation for the period May 13 through 24, 2019.
In a letter dated May 28, 2019, OWCP notified appellant that the medical evidence of
record was insufficient to support her claim for two hours per day of additional wage-loss
compensation commencing May 13, 2019. It afforded her 30 days to submit additional evidence
in support of her claim for increased disability.
In response, appellant submitted a May 1, 2019 report from Dr. Wilcox. Dr. Wilcox
related appellant’s “increasing difficulty managing a six[-]hour workday” due to postoperative
sacroiliac pain that made prolonged sitting and standing difficult. He diagnosed sacroiliac pain
and a lumbar disc herniation. Dr. Wilcox found that appellant’s current duties were not sustainable
and reduced her work schedule from six to four hours a day. He renewed prior restrictions of no
lifting more than 20 pounds; no bending, twisting, or crouching; and repositioning every 45
minutes.
In a report dated July 1, 2019, Dr. Wilcox reiterated that he had reduced appellant’s work
status from six to four hours a day due to worsened sacroiliac pain. He noted that even with a
reduced schedule, appellant’s functioning was very limited at the end of a workday and th at she
continued to have significant difficulty with prolonged sitting and standing. Dr. Wilcox
commented that, if appellant did not undergo sacroiliac joint fusion, she would need to pursue
medical disability.
On July 25, 2019 OWCP referred appellant, the medical record, a statement of accepted
facts (SOAF), and a list of questions to Dr. Steven Nadler, a Board-certified orthopedic surgeon,
to obtain a rationalized second opinion report to determine whether the sacroiliitis diagnosed by
Dr. Black was caused or aggravated by the April 20, 2016 employment injury, and whether the
sacroiliac arthrodesis recommended by Dr. Black and Dr. Wilcox was necessary to treat the
accepted employment injury. In an August 21, 2019 report, Dr. Nadler reviewed the medical
record and SOAF, noting a November 28, 2012 L4-5 lumbar fusion, a previous fusion at an
unknown level and date, and the authorized January 2, 2018 multilevel fusion. On examination,
he observed tenderness to palpation in the lumbosacral midline extending to both iliac crests and
the sacral/mid-sacroiliac joints. Dr. Nadler found limited range of lumbar motion in all planes,
diminished sensation in the outer aspect of the left lower extremity and thigh, and the dorsum and
medial side of the left foot. He diagnosed status post April 20, 2016 occupational lumbar strain,
and status-post 2012 and authorized January 2, 2018 lumbar fusions. Dr. Nadler opined that the
medical evidence of record, in particular Dr. Houston’s December 12, 2018 report, did not support
a diagnosis of sacroiliitis. Additionally, appellant had no objective evidence of sacroiliitis on
examination. Dr. Nadler concluded that appellant did not require sacroiliac arthrodesis or any
additional lumbar surgery.
In an August 23, 2019 Form CA-17, Dr. Wilcox found appellant able to work four hours a
day within her prior restrictions. 6
In a September 25, 2019 report, Dr. Wilcox disagreed with Dr. Nadler’s opinion, as
appellant’s significant pain relief following sacroiliac injection was “irrefutable evidence of a
6

On September 18, 2019 appellant retired from the employing establishment in lieu of a pending disciplinary
removal.

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sacroiliac source of pain.” He found appellant totally disabled from work due to pain and
dysfunction caused by her lumbosacral and sacroiliac spinal conditions.
In an October 1, 2019 report, Dr. Jason J.J. Chang, a Board-certified neurosurgeon,
reviewed appellant’s history of injury and treatment. He diagnosed lumbosacral spondylosis,
lumbar pain with left-sided radiculopathy, and lumbar psuedoarthrosis. Dr. Chang opined that
appellant’s sacroiliac joint and buttock pain was likely transferred pain from the junctional
pathology of the T12 through L5 fusion, and degeneration with vacuum disk phenomenon at L5 S1. He recommended an L5-S1 interbody fusion with possible bilateral foraminotomies.
In a November 1, 2019 report, Dr. Wilcox opined that appellant had reached maximum
medical improvement.
On November 6, 2019 OWCP requested that Dr. Nadler submit a supplemental report
indicating whether the accepted conditions of lower back strain, lumbar radiculopathy, and statuspost multilevel fusion continued to be present and disabling. In response, Dr. Nadler submitted a
November 7, 2019 report. He opined that the accepted low back strain and lumbar radiculopathy
did not disable appellant from full-duty work. Dr. Nadler noted that appellant’s post-surgical
status warranted permanent work limitations against lifting more than 25 pounds and repe titive
bending, but did not limit the number of hours she could work.
By decision dated February 5, 2020, OWCP denied appellant’s claim for a recurrence of
disability commencing May 2, 2019.
On February 12, 2020 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
Following the hearing held on June 9, 2020, OWCP received a July 10, 2020 report by
Dr. Wilcox, who noted that appellant underwent a planned second stage L5 -S1 fusion on
March 12, 2020. Dr. Wilcox related appellant’s symptoms of ongoing bilateral sacroiliac pain
with bilateral radiculopathy and foot numbness, worse with prolonged standing. He diagnosed
thoracic disc disease and a lumbar disc herniation. Dr. Wilcox opined that appellant’s persistent
radiculopathy following multiple surgeries indicated thoracic stenosis or a breakdown of the spinal
fusions.
OWCP received a July 15, 2020 addendum report from Dr. Nadler on the issue of whether
the April 20, 2016 employment injury caused or contributed to the development of a sacroiliac
condition. Dr. Nadler opined that appellant’s response to bilateral sacroiliac injections was
insufficient to support the presence of sacroiliitis or sacroiliac joint dysfunction as it was subjective
and therefore unreliable. There was no objective evidence of sacroiliac joint tenderness on
examination, and no indication for further treatment of a sacroiliac condition . Dr. Nadler noted
that he could not “determine what [appellant’s] symptoms are related to.” He opined that
appellant’s lower back complaints could be related to unspecified nonorthopedic medical issues.
By decision dated August 5, 2020, the hearing representative affirmed the February 5, 2020
decision.

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LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition that had resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that caused
the illness.7 This term also means an inability to work when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to the work-related injury or
illness is withdrawn, except when such withdrawal occurs for reasons of misconduct,
nonperformance of job duties or a reduction-in-force, or when the physical requirements of such
an assignment are altered so that they exceed his or her established physical limitations. 8
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position, or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the burden
of proof to establish by the weight of the reliable, probative, and substantial evidence a recurrence
of total disability and to show that he or she cannot perform such limited -duty work.9 As part of
this burden of proof, the employee must show either a change in the nature and extent of the injuryrelated condition, or a change in the nature and extent of the limited-duty job requirements.10
An employee who claims a recurrence of disability from an accepted employment injury
has the burden of proof to establish that the disability is related to the accepted injury. This burden
of proof includes the necessity of furnishing evidence from a qualified physician who concludes,
on the basis of a complete and accurate factual and medical history that, for each period of
disability claimed, the disabling condition is causally related to the employment injury, and
supports that conclusion with medical reasoning. 11 Where no such rationale is present, the medical
evidence is of diminished probative value. 12
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP denied appellant’s claim for recurrence of disability, based on Dr. Nadler’s
November 7, 2019 second opinion report that the accepted conditions and post-surgical status did
not limit her work hours. Dr. Nadler did not provide medical rationale explaining why appellant’s
post-surgical status would not limit the number of hours she would be able to work , but required

7

20 C.F.R. § 10.5(x); see J.D., Docket No. 18-1533 (issued February 27, 2019).

8

Id.

9

R.M. , Docket No. 20-0486 (issued June 9, 2021); see D.W., Docket No. 19-1584 (issued July 9, 2020); S.D.,
Docket N. 19-0955 (issued February 3, 2020); Terry R. Hedman, 38 ECAB 222 (1986).
10

A.H., Docket No. 20-1211 (issued April 30, 2011); J.H., Docket No. 19-1476 (issued March 23, 2021); J.B.,
Docket Nos. 18-1752, 19-0792 (issued May 6, 2019).
11

H.T., Docket No. 17-0209 (issued February 8, 2019); Ronald A. Eldridge, 53 ECAB 218 (2001).

12

E.M., Docket No. 19-0251 (issued May 16, 2019); Mary A. Ceglia, Docket No. 04-0113 (issued July 22, 2004).

6

other work limitations. The Board has held that a medical opinion not supported by rationale is of
diminished probative value. 13
It is well established that proceedings under FECA are not adversarial in nature and OWCP
is not a disinterested arbiter. The claimant has the burden of proof to establish entitlement to
compensation. However, OWCP shares responsibility in the development of the evidence to see
that justice is done. 14 Once it undertakes development of the record, OWCP must do a complete
job in procuring medical evidence that will resolve the relevant issues in the case. 15
As Dr. Nadler failed to provide rationale for his opinion, the Board finds that his opinion
is insufficient to carry the weight of the evidence. This case must, therefore, be remanded to refer
appellant, the complete medical record, and an updated SOAF to a new second opinion specialist
to determine whether the accepted conditions caused a recurrence of disability for the period May 2
through October 25, 2019. Following this and other such further development as deemed
necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

13

M.L., Docket No. 20-1682 (issued June 24, 2021); T.M., Docket No. 18-1418 (issued February 7, 2019).

14

See J.C., Docket No. 20-0064 (issued September 4, 2020); L.B., Docket No. 19-0432 (issued July 23, 2019);
William J. Cantrell, 34 ECAB 1223 (1983).
15

Id.; see also S.A., Docket No. 18-1024 (issued March 12, 2020).

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ORDER
IT IS HEREBY ORDERED THAT the August 5, 2020 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: December 8, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Evanston, IL, Employer
__________________________________________

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

Docket No. 14-1923
Issued: January 22, 2015

Case Submitted on the Record

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

JURISDICTION
On September 2, 2014 appellant, through his attorney, filed a timely appeal from a
July 29, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established an employment-related permanent
impairment to a scheduled member or function of the body under 5 U.S.C. § 8107.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 2, 2011 appellant, then a 43-year-old mail carrier, filed a traumatic injury claim
(Form CA-1)2 alleging that he sustained injuries on April 25, 2011 when he fell and hit his left
knee while in the performance of duty. The reverse of the claim form indicated that he stopped
working on April 25, 2011.
OWCP accepted the claim on June 13, 2011 for left knee contusion and left knee sprain.
In a report dated June 20, 2011, Dr. C. Prodromos, an orthopedic surgeon, stated that appellant
continued to have left knee pain. He stated that a magnetic resonance imaging (MRI) scan
showed significant damage to the left meniscus internally, although the tear lines were not seen
to extend to the surface. Dr. Prodromos diagnosed an apparent medial meniscus tear. The
record contains an MRI scan report dated June 13, 2011 from Dr. Jani Surehka, a radiologist,
who described the MRI scan findings and diagnosed medial meniscus mucinous degeneration
without discoid tear.
On June 24, 2011 OWCP accepted a left knee medial meniscus tear. In a report dated
July 18, 2011, Dr. Prodromos indicated that appellant underwent left knee surgery described as
left knee micro-fracture medial femoral condyle. The postoperative diagnosis was left knee
chondral defect medial femoral condyle. The record contains an MRI scan report dated
December 21, 2011 from Dr. Brian Murphy, a radiologist, stating that no meniscal tear was
present medially or laterally. Dr. Murphy indicated that no significant abnormalities were
present.
By report dated February 3, 2012, Dr. Prodromos stated that appellant’s knee continued
to feel good, with full range of motion, and no limp. Appellant returned to work on
February 6, 2012.
In a report dated August 11, 2012, Dr. Jessica Volsky, an osteopath, provided a history
that a 2011 MRI scan had shown a meniscus tear and that appellant had undergone surgery in
July 2011 to repair the meniscus as well as torn cartilage. She stated that he underwent physical
therapy but continued to have left knee pain that prohibited him from heavy lifting or repetitive
bending or squatting. Dr. Volsky diagnosed left knee contusion and sprain, and current medical
meniscus tear. As to permanent impairment, she opined that under Table 16-3 of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (6th
ed. 2008) appellant had an 8 percent impairment for the torn meniscus, 2 percent for contusion, 2
percent for a knee sprain, totaling 12 percent.
In a report dated October 8, 2012, Dr. David Garelick, an OWCP medical adviser, stated
that, although a medial meniscus tear had been accepted, the record did not establish a medial
meniscus tear. He noted that the July 18, 2011 surgery did not identify a tear or indicate that a
meniscectomy was performed. Dr. Garelick stated that Dr. Volsky’s opinion did not appear to be
based on an accurate background, and noted the February 3, 2012 findings from Dr. Prodromos.

2

A traumatic injury means a condition caused by events or incidents within a single workday or shift. 20 C.F.R.
§ 10.5(ee).

2

According to him, based on the resolution of symptoms, the physical examination, and
diagnostic studies, there was no basis for a schedule award.
By decision dated March 7, 2013, OWCP found that appellant was not entitled to a
schedule award. It found that the medical evidence was insufficient to establish an employmentrelated permanent impairment.
Appellant requested a hearing before an OWCP hearing representative. By decision
dated June 11, 2013, the hearing representative found that the meniscal tear was not established
by the record. The case was remanded for an additional report from the medical adviser with
respect to Dr. Volsky’s opinion as to contusion and sprain.
In a report dated June 24, 2013, Dr. Garelick reiterated his opinion that appellant did not
have a permanent impairment under the A.M.A., Guides. He stated that he was not clear on what
specific deficiencies in his prior report had been raised by the hearing representative.
Dr. Garelick reviewed the medical evidence and stated that there was no objective evidence of a
permanent impairment.
By decision dated November 14, 2013, OWCP found that appellant was not entitled to a
schedule award based on the medical evidence. Appellant again requested a hearing before an
OWCP hearing representative, which was held on May 8, 2014. Appellant’s representative
argued that Dr. Volsky’s report was sufficient to establish a permanent impairment.
By decision dated July 29, 2014, the hearing representative affirmed the November 14,
2013 decision. She found that the medical evidence did not establish an employment-related
permanent impairment.
LEGAL PRECEDENT
5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of
use of a member or function of the body, the claimant is entitled to a schedule award for the
permanent impairment of the scheduled member or function.3 Neither FECA nor the regulations
specify the manner in which the percentage of impairment for a schedule award shall be
determined. For consistent results and to ensure equal justice for all claimants OWCP has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.4 For schedule
awards after May 1, 2009, the impairment is evaluated under the sixth edition.5

3

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
4

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

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); Federal (FECA) Procedure, Part 3 -- Medical, Schedule Awards, Chapter
3.700.2 and Exhibit 1 (January 2010).

3

With respect to knee impairment, the A.M.A., Guides provides a regional grid at Table
16-3. The class of impairment Class of Diagnosis (CDX) is determined based on specific
diagnosis, and then the default value for the identified CDX is determined. The default value
(grade C) may be adjusted by using grade modifiers for Functional History (GMFH), Table 16-6,
Physical Examination (GMPE) Table 16-7, and Clinical Studies (GMCS) Table 16-8. The
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).7
6

ANALYSIS
In the present case, appellant seeks a schedule award and submitted an August 11, 2012
report from Dr. Volsky. With respect to a permanent impairment, Dr. Volsky referred to Table
16-3 and applied this table to the diagnoses of a left knee medial meniscus tear, contusion and a
sprain. OWCP did accept these conditions as causally related to the April 25, 2011 employment
injury. Dr. Volsky opined that appellant had a 12 percent permanent impairment to the left leg
under Table 16-3.
The August 11, 2012 report is, however, of diminished probative value and is not
sufficient to establish entitlement to a schedule award in this case. It is well established that
medical reports must be based on a complete and accurate factual and medical background, and
medical opinions based on an incomplete or inaccurate history are of little probative value.8 In
her report, Dr. Volsky states that an MRI scan showed a medial meniscus tear and appellant had
surgery to repair the meniscal tear. The MRI scan report from Dr. Surehka dated June 13, 2011
stated that there was degeneration “without discoid tear,” and Dr. Volsky does not provide any
explanation for this discrepancy. Moreover, as noted by the medical adviser, the July 18, 2011
surgery report made no mention of a meniscal tear and failed to provide any indication that a
meniscectomy was performed. In addition, Dr. Volsky provided a diagnosis of a “current”
medial meniscus tear. The medical record indicated that a December 21, 2011 MRI scan clearly
stated that no medial meniscus tear was found. Dr. Volsky does not discuss this evidence. The
medical history provided by her was inaccurate and incomplete, diminishing the probative value
of the opinion offered.
At the May 8, 2014 hearing appellant’s representative argued that OWCP had not
formally rescinded acceptance of a medial meniscus tear. The acceptance of a meniscal tear by
OWCP does not establish that Dr. Volsky had an accurate medical history with regard to a
July 18, 2011 surgery. In addition, the June 11, 2013 hearing representative’s decision clearly
found that the diagnosis of a meniscus tear was not established by the record. Appellant had an
opportunity to submit additional medical evidence on the issue.
Under Table 16-3, a leg impairment may be based on a partial or total medial or lateral
meniscectomy.9 Dr. Volsky did not provide an accurate history and did not provide a
6

A.M.A., Guides 509.

7

The net adjustment is up to +2 (grade E) or -2 (grade A).

8

See Patricia M. Mitchell, 48 ECAB 371 (1997); Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

9

A.M.A., Guides 509, Table 16-3.

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rationalized opinion as to the proper application of Table 16-3 with respect to a meniscal injury
in this case. Dr. Garelick supported his opinion that appellant did not have a meniscectomy and
there was no permanent impairment in this regard.
As to the diagnosed conditions of contusion and sprain, the August 11, 2012 report from
Dr. Volsky also fails to provide a rationalized medical opinion. Under Table 16-3, an
impairment can be found for a soft tissue injury: “bursitis, plica, [history of] contusion or other
soft tissue lesion.”10 A mild problem is based on “significant consistent palpatory findings
and/or radiographic findings.” To the extent Dr. Volsky was applying this portion of Table 16-3,
she provided no explanation. There were no findings regarding a continuing employment-related
contusion or an explanation as to how appellant had an employment-related permanent
impairment based on a contusion.
With respect to a left knee sprain, Table 16-3 refers to diagnostic criteria of “strain,
tendonitis, or ruptured tendon” based on “palpatory findings and/or radiographic findings.”11
Again, Dr. Volsky did not provide findings or otherwise provide a rationalized medical opinion
on the issue. Dr. Garelick indicated that there was no objective evidence establishing a
permanent impairment under the A.M.A., Guides.
The Board accordingly finds that the medical evidence is not sufficient to establish an
employment-related permanent impairment to the left leg under the A.M.A., Guides. Appellant
may request a schedule award based on evidence of a new exposure or medical evidence
showing a progression of an employment-related condition resulting in permanent impairment.
Based on the evidence of record, OWCP properly determined that he was not entitled to a
schedule award for this left knee injury.
CONCLUSION
The Board finds that appellant has not established an employment-related permanent
impairment to a scheduled member or function of the body under 5 U.S.C. § 8107.

10

Id.

11

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 29, 2014 is affirmed.
Issued: January 22, 2015
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.P., Administratrix of the Estate of P.P.,
Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 13-945
Issued: October 24, 2013

Case Submitted on the Record

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

JURISDICTION
On March 12, 2013 appellant, through counsel, filed a timely appeal from a January 11,
2013 decision of the Office of Workers’ Compensation Programs (OWCP), which affirmed the
denial of her posthumous claim for an increased schedule award. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant may make a posthumous claim for a schedule award.
FACTUAL HISTORY
On April 18, 1994 the employee, then a 47-year-old air conditioning mechanic,
developed a right knee condition as a result of performing his work duties. OWCP accepted his
1

5 U.S.C. §§ 8101-8193.

claim for right knee strain and right knee osteoarthritis and authorized right knee arthroscopic
surgery in 1994 and a right tibial osteotomy on April 12, 1995.
On March 31, 1997 the employee filed a claim for a schedule award. On June 10, 1997
OWCP issued a schedule award for five percent impairment of his right leg. The period of the
award was April 21 to July 30, 1997.
The employee underwent bilateral total right knee replacement on October 17, 2007.
OWCP authorized only the right total knee replacement as work related.
On April 5, 2010 the employee’s representative informed OWCP that the employee had
passed away. The death certificate noted a date of death of February 26, 2010. The immediate
cause was cardiac arrest and cardiac arrhythmia.
On December 1, 2011 the employee’s representative, now appellant’s representative,
submitted a November 14, 2011 medical report from Dr. David Weis, an osteopath, to OWCP in
support of a request for an increased schedule award. Appellant asserts that Dr. Weiss identifies
23 percent impairment to each of the lower extremity as a result of the bilateral total knee
replacements. She requested an additional 23 percent impairment to the bilateral lower
extremities. On December 7, 2011 appellant filed a claim for an additional schedule award.
In a decision dated June 19, 2012, OWCP denied appellant’s claim on the grounds that
the employee made no request for an increased schedule award prior to his death on
February 26, 2010.
On June 26, 2012 appellant requested an oral hearing which was held on
October 25, 2012.
On January 11, 2013 an OWCP hearing representative affirmed the decision dated
June 19, 2012. The hearing representative explained that a claim for a schedule award was made
during the employee’s lifetime, but the issue was decided in previous decisions and was no
longer under development. Because OWCP received no further claim for an increased award
before the employee’s death, there was no entitlement to such an award.
On appeal, appellant’s representative argues that posthumous schedule awards are
permitted under 5 U.S.C. § 8109(a). He argues that the employee did make a valid claim for a
schedule award during his lifetime. Counsel adds that appellant has submitted substantial
medical evidence to establish a 23 percent increase in the award previously paid.

2

LEGAL PRECEDENT
Section 8107 of FECA authorizes the payment of schedule awards for the loss or loss of
use of specified members, organs or functions of the body.2 Such loss or loss of use is known as
permanent impairment.3
Section 8109(a) of FECA provides that, if an individual has sustained disability
compensable under section 8107(a), has filed a valid claim in his lifetime, and dies from a cause
other than the injury before the end of the period specified by the schedule, the compensation
specified by the schedule that is unpaid at his death, whether or not accrued or due at his death,
shall be paid, under an award made before or after the death and for the period specified by the
schedule, to designated surviving beneficiaries.4
The Board has held that the intent of the statutory language is clear: for a beneficiary to
be entitled to payment of a schedule award upon the death of an injured employee, such claim
must have been filed within the employee’s lifetime.5 If an injured employee or someone acting
on the employee’s behalf does not file a claim before the employee’s death, the right to claim
compensation for disability other than medical expenses does not survive.6 The Board has held
that FECA does not permit a representative to make a posthumous claim for an increased
schedule award. Section 8109(a) provides that an injured employee or someone on his behalf
must file a claim for an increased schedule award during the employee’s lifetime to establish a
valid claim for an award.7
A posthumous claim may be made by the estate or a survivor of a deceased employee for
medical benefits only. A posthumous disability claim cannot be accepted.8
ANALYSIS
On December 7, 2011 appellant, through her representative, made a posthumous claim
for an increased schedule award. FECA does not permit such claims. The Board has held that
the plain reading of section 8109(a) makes clear that an injured employee or someone on his
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

5 U.S.C. § 8109(a).

5

Carol T. Collins (Harold Turner), 54 ECAB 417 (2003).

6

20 C.F.R. § 10.105(d).

7

See F.D., (D.D.), Docket No. 10-229 (issued August 2, 2010) (where the Board held that FECA did not permit a
posthumous claim for an increased schedule award; it held that the plain reading of section 8109(a) makes clear that
a claim must be filed during the employee’s lifetime to establish a valid claim for a schedule award; the evidence did
not support that the employee filed a valid claim for an increased schedule award following full payment of a
previous award).
8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.8(d) (March 1993).

3

behalf must file a claim during the employee’s lifetime to establish a valid claim for a schedule
award.9 Appellant’s representative does not argue, and the evidence does not support, that the
employee filed a valid claim for an increased schedule award following the five percent rating
previously awarded on June 10, 1997. Rather, the evidence reveals that on December 7, 2011
appellant’s representative filed a claim for an increased schedule award after the employee’s
death on February 26, 2010. Accordingly, the right to initiate a claim for compensation for an
alleged increase in impairment did not survive the employee’s death. Appellant’s posthumous
claim is invalid. The Board will therefore affirm OWCP’s January 11, 2013 decision affirming
the denial of her posthumous claim.
On appeal, appellant’s representative argues that posthumous schedule awards are
permitted under section 8109(a). This is true provided certain conditions are met, such as the
filing of a valid claim in the employee’s lifetime. One must distinguish the posthumous payment
of a schedule award under section 8109 from a posthumous claim for a schedule award. There is
no provision for a posthumous claim. For this reason, the Board holds that appellant’s claim is
invalid. Appellant’s representative further asserts that the employee filed a valid claim for a
schedule award during his lifetime. On March 31, 1997 the employee filed an initial claim for a
schedule award. However, section 8109(a) addresses any scheduled compensation that is unpaid
at his death. In this case, there was no outstanding or unpaid compensation under the previous
schedule award claim. OWCP accepted that claim and fully paid the employee the compensation
specified under the schedule. Neither claim was under development at the time of death.10
The Board finds that the wording of section 8109(a)(2) “has filed a valid claim in his
lifetime” cannot refer to the employee’s March 31, 2007 claim as this claim had been paid. It
necessarily refers to a schedule award claim filed in the employee’s lifetime that was unpaid at
the time of his death or still under development. As noted, the record shows no such claim.
Absent a valid claim filed in the employee’s lifetime, there can be no entitlement to additional
benefits under section 8109.
CONCLUSION
The Board finds that appellant may not make a posthumous claim for a schedule award.

9

See F.D., (D.D.), supra note 7; Mary Marie Young (David E. Young), 30 ECAB 94 (1978).

10

See F.D., (D.D.), supra note 7; but cf. Sue Howard (Jimmie L. Howard), 55 ECAB 715 (2004) (where the
employee died after requesting an oral hearing on the issue of the percentage impairment awarded, the Board found
that OWCP improperly denied appellant’s right to contest the schedule award and pursue the employee’s claim for a
revised award); Cheryl R. Holloway (Wryland R. Holloway), 54 ECAB 443 (2003) (initial claim under development
at the time of death); M.D. (C.D.), Docket No. 06-1010 (issued November 3, 2006) (where the employee filed a
claim for an increased schedule award and the case was remanded for further development of the issue in 1974, but
OWCP never issued a final decision in the matter and the issue remained unresolved, the Board held there was a
pending claim for an increased schedule award during the employee’s lifetime and that there was no provision in
section 8109 precluding appellant from pursuing the issue on behalf of the employee’s estate).

4

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated January 11, 2013 is affirmed.
Issued: October 24, 2013
Washington, DC

Richard J. Daschbach, Chief 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
__________________________________________
B.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
COATESVILLE VETERANS MEDICAL
CENTER, Coatesville, PA, Employer
__________________________________________

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

Docket No. 08-351
Issued: June 20, 2008

Case Submitted on the Record

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

JURISDICTION
On November 14, 2007 appellant filed a timely appeal from November 22, 2006 and
June 19, 2007 decisions of the Office of Workers’ Compensation Programs, adjudicating her
claim for a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has more than a five percent impairment of her left upper
extremity.
FACTUAL HISTORY
On May 30, 2000 appellant, then a 57-year-old nursing assistant, sustained a fracture and
contusion of her left ring finger when a closing door struck her hand. On June 27, 2002 she filed
a claim for a schedule award. On October 28, 2002 appellant sustained a trigger finger condition
of her middle finger and de Quervain’s tendinitis of her left wrist due to work activities,

including repetitive pushing, pulling and lifting.1 On June 6, 2005 appellant filed a second claim
for a schedule award.
In a June 7, 2001 report, Dr. David Weiss, an orthopedic surgeon, provided findings on
physical examination. He found that appellant had a seven percent impairment of her left upper
extremity based on constrictive tenosynovitis of the left ring finger and Tables 16-18 and 16-29
at pages 499 and 507, respectively, of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) fifth edition.2 On October 15, 2002
Dr. M.F. Quinlan, a district medical director, found that appellant had a seven percent
impairment of her left ring finger, based on the physical findings in the report of Dr. Weiss.
On March 5, 2003 the Office granted appellant a schedule award from May 25 to June 6,
2001, or 1.75 weeks, for a seven percent impairment of her left ring finger.3 By decisions dated
March 3, 2004 and February 9, 2005, it denied appellant’s claim for an additional schedule
award for her left hand.
On May 10, 2005 appellant requested reconsideration and submitted a February 8, 2005
report in which Dr. Weiss stated that appellant had intermittent left hand pain, weakness and
stiffness. Dr. Weiss provided findings on physical examination. He found that appellant had a 5
percent range of motion impairment of her left upper extremity, including 11 percent for
decreased flexion (70 degrees) of the left middle finger metacarpophalangeal (MP or MCP) joint,
based on Figure 16-25 at page 464 of the fifth edition of the A.M.A., Guides, and 21 percent for
decreased flexion (30 degrees) of the left middle finger distal interphalangeal (DIP) joint, based
on Figure 16-21 at page 461, for a combined digit impairment of 30 percent, which constituted a
5 percent impairment of the upper extremity. Dr. Weiss combined the five percent impairment
for range of motion deficit with three percent for pain, based on Table 18-1 at page 574, and
determined that appellant had eight percent upper extremity impairment.
By decision dated August 18, 2005, the Office affirmed the February 9, 2005 decision
denying appellant’s claim for greater than a seven percent impairment of her left ring finger.
The Office noted, however, that the medical evidence supported the impairment of two digits,
her left ring finger and left middle finger. It indicated that a separate schedule award would be
issued regarding impairment of her left upper extremity due to the impairment of two digits.
Dr. Arnold Berman, an Office medical adviser, found that, based on the reports of
Dr. Weiss, appellant had a five percent impairment of the hand which constituted a five percent
impairment of the upper extremity, based on Table 16-2 at page 439 of the A.M.A., Guides. He
stated that there was no basis for Dr. Weiss’ finding of impairment due to pain.
1

The Office associated the file for the 2000 employment injury (File No. 030252134) with the file for the 2002
employment injury (File No. 032013724) under the master file, File No. 032013724.
2

Dr. Weiss did not take into consideration the fact that, under the Federal Employees’ Compensation Act, if only
one digit (thumb or a finger) is impaired, the impairment percentage does not extend to a larger unit, the hand or the
upper extremity. 5 U.S.C. § 8107(c)(17), (20).
3

The Act provides for 25 weeks of compensation for 100 percent loss or loss of use of the third (ring) finger.
5 U.S.C. § 8107(c)(10). Multiplying 25 weeks by seven percent equals 1.75 weeks of compensation.

2

By decision dated August 19, 2005, the Office granted appellant a schedule award from
February 7 to May 14, 2005 or 15.60 weeks, for a five percent impairment of her left upper
extremity4 In an August 19, 2005 file memorandum, a claims examiner noted that appellant had
previously received compensation for 12.25 days for her seven percent impairment of her left
ring finger (1.75 weeks multiplied by 7 days in a week). Consequently, appellant was entitled to
109.20 days of compensation for her five percent left upper extremity impairment (15.60 weeks
multiplied by 7 days). The Office deducted the 12.25 days previously paid, leaving a balance of
96.95 days of compensation, rounded to 97 days.
On August 29, 2005 appellant requested a hearing that was held on December 20, 2005.
By decision dated March 8, 2006, an Office hearing representative found a conflict in the
medical opinion evidence between Dr. Weiss and Dr. Berman as to appellant’s left upper
extremity impairment and remanded the case for an evaluation by an impartial medical specialist.
The Office referred appellant, together with a statement of accepted facts, a list of
questions and the case file, to Dr. Richard I. Zamarin, a Board-certified orthopedic surgeon, for
an impairment rating of her left upper extremity. In a December 12, 2006 report, Dr. Zamarin
stated that appellant’s left wrist ached occasionally. He provided findings on physical
examination as follows:
“Range of motion of her fingers revealed that her [MP] joints have full extension
and 90 degrees of flexion…. The proximal interphalangeal [PIP] joint extension
is 0 degrees in all fingers and 100 degrees of flexion in the second and third
[index and middle fingers], 94 degrees in the fourth [ring finger], and 100 degrees
in the fifth [little finger]. The [DIP] joint range of motion is 0 degrees of
extension in the second through fifth digits, and 54 degrees of flexion in the
second and third, 46 degrees of flexion in the fourth, and 64 degrees of flexion in
the fifth…. These measurements were taken using a goniometer.
“Examination of the left wrist revealed a ganglion overlying the first dorsal
compartment.
[Appellant] had minimal tenderness over the first dorsal
compartment and she had a minimally positive Finkelstein’s test. [She] had full
flexion, extension, pronation, and supination of her left wrist and forearm.
[Appellant] was neurovascularly intact distally.
“[Appellant’s] grip strength was equal bilaterally to manual testing.”
***
“Going to [p]age 461, Figure 16-21 … the finger DIP joint range of motion of the
[middle] finger is 0 to 54 degrees, which is approximately eight percent
[i]mpairment in [f]lexion.

4

The Act provides for 312 weeks of compensation for 100 percent loss or loss of use of an upper extremity.
5 U.S.C. § 8107(c)(1). Multiplying 312 weeks by five percent equals 15.60 weeks of compensation. The Office
noted that appellant previously received a schedule award for the left ring finger.

3

“The PIP joint of the [middle] finger flexes to 100 degrees. So, going to [p]age
463, Figure 16-23 … this is [zero] percent Impairment.
“Then going to [p]age 464, Figure 16-25 … her MP joint flexes to 90 degrees
and, therefore, this is also a [zero] percent [i]mpairment.
“Then going to her [ring] finger, again [p]age 461, Figure 16-21, her [ring] finger
flexes to the DIP to 46 degrees, which is a 12 percent [i]mpairment in [f]lexion.
Going to [p]age 463, Figure 16-23, her PIP flexes to 94 degrees, which is
approximately a 4 percent [i]mpairment in [f]lexion and the [MP] joint flexes to
90 degrees, and going to [p]age 464, Figure 16-25, this is a 0 percent
[i]mpairment in [f]lexion.
“On [p]age 511, Step 3 states that the motion impairments of the DIP, PIP, and
MP fingers are combined using a Combined Values Chart on [p]age 604. For the
[middle] finger, this remains [eight] percent. For the [ring] finger, combining 12
percent with 4 percent gives a 16 percent [i]mpairment.
“One then has to convert as in Step 6, on [p]age 511, the individual digit
impairments to hand impairments. Going to [p]age 438, Table 16-1 … an 8
percent [middle] digit impairment converts to a 2 percent [h]and [i]mpairment,
and a 16 percent ring finger impairment converts to a 2 percent [h]and
[i]mpairment.
“On [p]age 511, Step 7 states that you then add the hand impairment values
contributed by each digit. This gives a [four] percent [h]and [i]mpairment.
[G]oing to Table 16-2 … a [four] percent [h]and [i]mpairment converts to a 4
percent [u]pper [e]xtremity [i]mpairment.
“I do not believe, based upon a reasonable degree of medical certainty, that there
is any basis for a pain award and I am in agreement with Dr. Berman. [Appellant]
told me that she is doing normal activities, has no restrictions as a result of her
symptoms, and it only bothers her if she works a long time or with weather
changes, and that warm water helps it. I would therefore not award her anything
for her pain.”
By decision dated December 22, 2006, the Office found that appellant had no more than a
five percent left upper extremity impairment for which she received a schedule award.
On January 3, 2007 appellant requested a hearing that was held on April 2, 2007. By
decision dated June 19, 2007, an Office hearing representative affirmed the December 22, 2006
decision.

4

LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act5 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.6
Section 8123(a) of the Act provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.7 Where 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.8
ANALYSIS
Due to the conflict in the medical opinion evidence between Dr. Weiss and Dr. Berman
as to the permanent impairment of appellant’s left upper extremity, the Office properly referred
appellant to Dr. Zamarin for an impartial medical examination.
The Board finds that Dr. Zamarin’s evaluation of appellant’s left upper extremity
impairment is not sufficient to resolve the conflict in medical opinion.
Dr. Zamarin did not provide all the range of motion measurements required in the
A.M.A., Guides for determination of wrist impairment. He stated that appellant had full flexion
and extension of her wrist. However, Dr. Zamarin did not provide measurements for ulnar and
radial deviation.9 Additionally, the record shows that the file was not routed to an Office

5

5 U.S.C. § 8107.

6

See 20 C.F.R. § 10.404 (1999). Effective February 1, 2001, the Office began using the A.M.A., Guides (5th ed.
2001). See also Linda Beale, 57 ECAB 429 (2006).
7

5 U.S.C. § 8123(a).

8

See Darlene R. Kennedy, 57 ECAB 414 (2006); Roger Dingess, 47 ECAB 123 (1995).

9

See A.M.A., Guides 468-69, Figures 16-29 and 16-31. The Board notes that Dr. Zamarin correctly applied
appellant’s physical findings on examination to the A.M.A., Guides concerning the range of motion deficits of her
middle finger and ring finger for her accepted conditions. He correctly converted the finger impairments to a four
percent impairment of the left upper extremity. Dr. Zamarin explained his finding that there was no basis for
impairment due to pain or sensory deficit. He noted that appellant’s left upper extremity was neurovascularly intact
distally and she had minimal tenderness. Appellant was performing normal activities with no restrictions as a result
of her accepted conditions. Her left upper extremity bothered her only if she worked for a long time or with changes
in weather.

5

medical adviser following Dr. Zamarin’s impairment evaluation as required by Office
procedures.10
Board case precedent provides that, when the Office obtains an opinion from an impartial
medical specialist for the purpose of resolving a conflict in the medical evidence and the
specialist’s opinion requires clarification or elaboration, the Office must secure a supplemental
report from the specialist to correct the deficiency in his original report. Only when the impartial
specialist is unable to clarify or elaborate on his original report or if his supplemental report is
incomplete, vague, speculative or lacking in rationale, should the Office refer the claimant to a
second impartial specialist.11
CONCLUSION
The Board finds that this case is not in posture for a decision. The case will be remanded
for the Office to obtain a supplemental report from Dr. Zamarin. After the report is obtained, the
Office should route the file to an Office medical adviser for an opinion on appellant’s left upper
extremity impairment.

10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002) (these procedures provide that, after all necessary medical evidence has been
obtained, the file should be routed to an Office medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides with the medical adviser providing rationale for the
percentage of impairment, especially when there is more than one evaluation of the impairment present); see also
Richard R. LeMay, 56 ECAB 341 (2005).
11

See Nancy Keenan, 56 ECAB 687 (2005).

6

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 19, 2007 and December 22, 2006 be set aside. The case is
remanded for further development consistent with this decision of the Board.
Issued: June 20, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Tampa, FL, Employer
__________________________________________

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

Docket No. 07-2009
Issued: January 16, 2008

Case Submitted on the Record

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

JURISDICTION
On July 26, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ February 15 and July 11, 2007 merit decisions denying his emotional
condition claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
On August 11, 2006 appellant, then a 66-year-old dental laboratory technician, filed a
claim alleging that he sustained stress-related anxiety due to “harassment and intimidation” at
work.1 He stopped work on July 10, 2006. Appellant submitted a July 7, 2006 report in which
1

Appellant suggested that this anxiety aggravated his preexisting cardiac condition.

Dr. Lawrence D. Kelly, an attending Board-certified family practitioner, indicated that he
suffered from severe anxiety.
In several statements dated in July and September 2006, appellant alleged that in the first
half of 2006 he was subjected to harassment and discrimination by Dr. David Christian and
Dr. Gary Fort, supervisors, and Rosa Vincent, a coworker. He indicated that in December 2005
or January 2006 he spoke with Dr. Christian about tooth crowns that were rendered unusable and
asserted that Dr. Christian did not speak to him for “many weeks” thereafter. Appellant claimed
that during this period there were several incidents of infection control violations by
Dr. Christian and Ms. Vincent, including coming into his work space without properly
disinfecting themselves.
Appellant claimed that he was approached by Dr. Fort about safety matters. Dr. Fort told
him that he and Dr. Christian shared a “brotherhood” as dentists and that he “would prefer to step
aside” and let him handle the situation. Appellant was “disappointed and crushed” when
Dr. Christian took work away from him then discussed the matter with Dr. Fort, Ms. Vincent,
and Michael Finley, a coworker. He claimed that he was unfairly required to perform
Dr. Christian’s preparatory work and suggested that coworkers carried out infection control
violations in order to provoke a “violent reaction” from him. Appellant asserted that Dr. Fort
was an “ineffective and unqualified manager” and that supervisors unfairly criticized his work
performance and tried to have him declared unfit for duty.
In a statement received by the Office on September 1, 2006, Dr. Fort stated that some of
appellant’s concerns about infection control practices were valid, such as staff not removing
masks before leaving their working spaces. However, these concerns were addressed swiftly and
effectively. Dr. Fort asserted that appellant’s health was never in jeopardy due to these minor
matters. He stated that the facility has a certified infection control nurse practitioner who
investigated appellant’s concerns about disinfection techniques used in the work unit. The nurse
practitioner found that there was nothing inappropriate about the techniques. She found that the
level of disinfection suggested by appellant was not necessary to make prosthetic dental devices.
Dr. Fort asserted that appellant had not been harassed by supervisors or coworkers and indicated
that he diligently responded to all of appellant’s concerns.2
The record contains a July 20, 2006 mediation settlement agreement that was reached in
connection with a grievance appellant filed against the employing establishment. The agreement
provided, among other things, that Dr. Fort would meet with Dr. Christian and Ms. Vincent to
discuss “professional behavior and conduct standards,” that appellant would participate in any
future mediation with Dr. Christian should Dr. Christian agree to such mediation, and that
Dr. Fort would respond to all of appellant’s reports of professional misconduct on the same day
as the occurrence. The settlement agreement provided that it did not “constitute either an
admission or concession of wrongdoing by either party of the Agency and will not be
represented as such by anyone.”

2

In an October 4, 2006 statement, Dr. Fort stated that after he investigated appellant’s claim that coworkers had
not properly disinfected themselves the involved parties assured him that they were properly disinfected.

2

In a February 15, 2007 decision, the Office denied appellant’s emotional condition claim
on the grounds that he did not establish any compensable employment factors. It found that
appellant did not establish that the employing establishment subjected him to harassment and
discrimination or committed error or abuse with respect to administrative matters. The Office
determined that appellant had not factually established his claim that his health was threatened
by infection control violations.
Appellant submitted August 28, 2006, February 16 and March 10, 2007 statements in
which he further discussed his claimed employment factors. He alleged that his work unit used
an inappropriate and ineffective type of disinfectant on dental devices and therefore he was
subjected to a host of contagious diseases. Appellant asserted that Dr. Christian and his
assistants repeatedly came into his work space without disinfecting themselves and that
numerous officials failed to address his concerns. He claimed that the employing establishment
mishandled his leave requests, committed age discrimination, and subjected him to disciplinary
actions in retaliation for filing grievances.3
In a February 26, 2007 statement, Mr. Finley stated that he witnessed appellant being
subjected to harassment and discrimination, mostly by Dr. Christian and Ms. Vincent. He
claimed that in early 2006 Dr. Christian, Dr. Fort and Ms. Vincent contaminated appellant’s
work space by entering with contaminated masks and gloves. Mr. Finley alleged that
Ms. Vincent deliberately tried to provoke appellant by committing such actions. He asserted that
Dr. Christian mischaracterized an encounter with appellant on August 4, 2006.4 Mr. Finley
claimed that appellant had to protect himself against the “repeated assaults” of Dr. Christian and
Ms. Vincent. Appellant submitted e-mails in which Melissa Ignacio, a certified infection control
nurse practitioner for the work unit, discussed the use of various disinfectants in the workplace.
Appellant requested a review of the written record by an Office hearing representative.
In a July 11, 2007 decision, the Office hearing representative affirmed the Office’s February 15,
2007 decision.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.5 On the other hand, the disability is not covered where it results from such factors as an

3

Appellant also submitted additional reports of Dr. Kelley and other attending physicians.

4

In an undated statement, Mr. Finley stated that on August 4, 2006 appellant used an expletive in Dr. Christian’s
presence. The August 4, 2006 incident was the subject of one of the disciplinary actions taken against appellant.
5

5 U.S.C. §§ 8101-8193.

3

employee’s fear of a reduction-in-force or his frustration from not being permitted to work in a
particular environment or to hold a particular position.6
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he claims compensation was caused or
adversely affected by employment factors.7 This burden includes the submission of a detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.8
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.9 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.10
ANALYSIS
Appellant alleged that he sustained an emotional condition as a result of a number of
employment incidents and conditions. The Office denied appellant’s emotional condition claim
on the grounds that he did not establish any compensable employment factors. The Board must
initially review whether these alleged incidents and conditions of employment are covered
employment factors under the terms of the Act.
Appellant asserted that between March and July 2006 he was subjected to harassment and
discrimination by two supervisors, Dr. Christian and Dr. Fort, and a coworker, Ms. Vincent. He
indicated that he was “disappointed and crushed” when Dr. Christian took work away from him
and then discussed the matter with Dr. Fort, Ms. Vincent, and Michael Finley, a coworker.
Appellant claimed that he was unfairly required to perform Dr. Christian’s preparatory work and
suggested that coworkers, particularly Ms. Vincent, carried out infection control violations in
order to provoke a “violent reaction” from him. He alleged that the employing establishment
committed age discrimination and subjected him to disciplinary actions in retaliation for filing

6

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler, 28
ECAB 125 (1976).
7

Pamela R. Rice, 38 ECAB 838, 841 (1987).

8

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

9

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

10

Id.

4

grievances. Appellant asserted that, after he told Dr. Christian that a case of tooth crowns had
been rendered unusable, Dr. Christian did not speak to him for “many weeks” thereafter.
To the extent that disputes and incidents alleged as constituting harassment and
discrimination by supervisors and coworkers are established as occurring and arising from
appellant’s performance of his regular duties, these could constitute employment factors.11
However, for harassment or discrimination to give rise to a compensable disability under the Act,
there must be evidence that harassment or discrimination did in fact occur. Mere perceptions of
harassment or discrimination are not compensable under the Act.12
In the present case, the employing establishment denied that appellant was subjected to
harassment or discrimination and he has not submitted sufficient evidence to establish that he
was harassed or discriminated against by his supervisors or coworkers.13 Appellant submitted a
statement of Mr. Finley who asserted that he was subjected to harassment and discrimination by
Dr. Fort and Ms. Vincent. However, this statement is of limited probative value as Mr. Finley’s
assertions of harassment and discrimination lack specificity. The record contains a July 20, 2006
mediation settlement agreement that was reached in connection with a grievance concerning
many of appellant’s claims of harassment and discrimination. The agreement provided, among
other things, that Dr. Fort would meet with Dr. Christian and Ms. Vincent to discuss
“professional behavior and conduct standards,” but the agreement explicitly indicated that there
was no finding of wrongdoing by any employee.14 Therefore, appellant did not provide
sufficient corroborating evidence to establish that the alleged actions actually occurred.15 Thus,
appellant has not established a compensable employment factor under the Act with respect to the
claimed harassment and discrimination.
Appellant claimed that in the first half of 2006 there were a number of infection control
violations by Dr. Christian and Ms. Vincent who came into his work space without properly
disinfecting themselves. He alleged that his work unit used an inappropriate and ineffective type
of disinfectant on dental devices and therefore he was subjected to a host of contagious diseases.
The Board has recognized that unsafe work conditions can constitute a factor of employment.16
However, appellant did not establish the factual aspects of this aspect of his claim in that
he did not submit sufficient evidence to support his assertions that he actually was subjected to
contamination such that he had to work in an unsafe environment. Dr. Fort stated that some of
appellant’s concerns about infection control practice were valid, such as staff not removing
11

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

12

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

13

See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence).
14

The agreement provided that it did not “constitute either an admission or concession of wrongdoing by either
party of the Agency and will not be represented as such by anyone.”
15

See William P. George, 43 ECAB 1159, 1167 (1992).

16

See Peggy Ann Lightfoot, 48 ECAB 490, 494 (1997).

5

masks before leaving their working spaces, but indicated that these concerns were addressed
swiftly and effectively. He asserted that appellant’s health was never in jeopardy due to these
minor matters and noted that Ms. Ignacio, a certified infection control nurse practitioner,
investigated appellant’s concerns about disinfection techniques used in the work unit and found
that there was nothing inappropriate about the techniques.17
Appellant claimed that the employing establishment mishandled his leave requests and
work assignments, improperly disciplined him, and failed to address his safety concerns.18 He
asserted that supervisors unfairly criticized his work performance and improperly tried to have
him declared unfit for duty. Regarding appellant’s allegations that the employing establishment
engaged in improper disciplinary actions, issued unfair performance evaluations, wrongly denied
leave, and improperly assigned work duties, the Board finds that these allegations relate to
administrative or personnel matters, unrelated to the employee’s regular or specially assigned
work duties and do not fall within the coverage of the Act.19 Although the handling of
disciplinary actions and performance evaluations, the granting of leave requests, the assignment
of work duties, and the handling of safety matters are generally related to the employment, they
are administrative functions of the employer, and not duties of the employee.20 However, the
Board has also found that an administrative or personnel matter will be considered to be an
employment factor where the evidence discloses error or abuse on the part of the employing
establishment. In determining whether the employing establishment erred or acted abusively, the
Board has examined whether the employing establishment acted reasonably.21
The Board finds that appellant did not submit sufficient evidence to establish that the
employing establishment committed error or abuse with respect to these matters. The abovedescribed grievance addressed some of these matters but the July 20, 2006 settlement agreement
contained no finding that the employing establishment committed wrongdoing with respect to
administrative matters. Thus, appellant has not established a compensable employment factor
under the Act with respect to administrative matters.

17

The record contains e-mails in which Ms. Ignacio discussed the use of various disinfectants in the work, but she
did not indicate that unsafe conditions occurred due to the misuse of such disinfectants. Mr. Finley claimed that
appellant was subjected to contamination but his vague comments in this regard would not establish the existence of
such contamination.
18

Appellant claimed that, when he approached Dr. Fort about Dr. Christian’s safety infractions, Dr. Fort told him
that he and Dr. Christian shared a “brotherhood” as dentists and that he “would prefer to step aside” and let him
handle the situation.
19

See Janet I. Jones, 47 ECAB 345, 347 (1996), Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate, 41
ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).
20

Id.

21

See Richard J. Dube, 42 ECAB 916, 920 (1991).

6

For the foregoing reasons, appellant has not established any compensable employment
factors under the Act and, therefore, has not met his burden of proof in establishing that he
sustained an emotional condition in the performance of duty.22
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an emotional condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
July 11 and February 15, 2007 decisions are affirmed.
Issued: January 16, 2008
Washington, DC

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

22

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF HOMELAND SECURITY,
)
TRANSPORTATION SECURITY
)
ADMINISTRATION, PANGBORN MEMORIAL )
AIRPORT, East Wenatchee, WA, Employer
)
__________________________________________ )
C.B., Appellant

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

Docket No. 15-1407
Issued: October 21, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 16, 2015 appellant, through her representative, filed a timely appeal from a
June 3, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $431.46 because she concurrently received
Social Security Administration (SSA) benefits for the period December 1, 2014 through April 4,
2015 while receiving FECA benefits; (2) whether OWCP properly found her at fault and thus not
entitled to waiver of recovery of the overpayment; and (3) whether OWCP properly required

1

5 U.S.C. §§ 8101-8193.

repayment of the overpayment by deducting $71.91 every 28 days from appellant’s continuing
compensation.
On appeal appellant disputes the fault determination, noting that the June 3, 2015
decision contains inconsistent language.
FACTUAL HISTORY
On June 24, 2010 appellant, then a 61-year-old transportation security officer, filed an
occupational disease claim (Form CA-2) alleging that repetitively lifting heavy baggage caused
right shoulder and arm pain. She did not stop work and was placed on modified duty. On
July 27, 2010 OWCP accepted right rotator cuff strain. Appellant continued to work modified
duty until October 27, 2010 when she had authorized right shoulder surgery. She stopped work
at that time, received compensation, and was placed on the periodic compensation rolls.
Appellant returned to modified duty on February 27, 2011. Effective June 5, 2011, the
employing establishment could no longer accommodate her restrictions. Appellant was returned
to the periodic compensation rolls, and in July 2011 was referred for vocational rehabilitation.
On November 28, 2011 appellant informed OWCP that she had been awarded SSA
disability benefits effective January 2012. OWCP informed her that FECA benefits would be
offset by SSA benefits, not by disability benefits, but that when she reached full retirement age,
her SSA benefit would convert to a retirement benefit, which would be offset. Appellant
forwarded an SSA notice of award letter dated November 7, 2011 informing her that she was
entitled to monthly SSA disability benefits beginning December 2011.
In an October 22, 2012 decision, OWCP finalized its August 14, 2012 proposed reduction
of appellant’s compensation based on her capacity to earn wages as a security officer, effective
October 21, 2012.
In January 2013 OWCP began development of whether appellant was receiving dual
benefits from FECA and SSA. On January 28, 2013 and April 18, 2014 SSA informed OWCP
that appellant received SSA disability benefits which were not subject to offset. On March 25,
2015 it advised that, effective December 2014, appellant’s SSA benefits were now subject to
offset. On April 3, 2015 OWCP informed appellant that her FECA benefits were being reduced
to reflect the federal contribution to her SSA benefits.
On April 15, 2015 OWCP issued a preliminary determination that an overpayment of
compensation in the amount of $431.46 had been created. It explained that the overpayment
occurred because a portion of appellant’s SSA benefits, that she received from December 1, 2014
through April 4, 2015, was based on credits earned while working in the Federal Government,
and that this portion of her SSA benefit was a prohibited dual benefit. OWCP found appellant at
fault because she accepted a payment that she knew or should have known was incorrect. The
preliminary determination provided an explanation of the calculation of the overpayment.
Appellant was provided an overpayment action request and an overpayment questionnaire. She
was informed of the actions she could take and was allotted 30 days to respond. An
overpayment worksheet indicated that the FERS offset for the period December 1, 2014 through

2

April 4, 2015 totaled $431.46. On April 2, 2015 we received a report from SSA showing
effective December 2014, the claimant’s SSA rate with FERS is $1,461.20 and SSA rate without
FERS is $1,356.50. Based on this information, the monthly offset is $104.70 ($1,461.20$1,356.50). $104.70 x 12 months/13 months based on the 28-day cycle = $96.65. $96.65/28 =
$3.4517 per day x 125 days covering the period December 1, 2014 to April 4, 2015 = $431.46.
Appellant requested a telephone conference and submitted an overpayment questionnaire,
signed on April 20, 2015. She reported monthly income of $1,991.00 and expenses totaling
$1,295.00. Checking and savings accounts totaled $17,958.21.
A telephone conference was held on June 2, 2015. Appellant reported receiving SSA
disability benefits on November 28, 2011, and that, after previous inquiries, SSA notified OWCP
on March 25, 2015 that retirement offset became effective December 1, 2014. At the conference
she maintained that she was not at fault because she informed OWCP that she was receiving SSA
benefits. Appellant stated that she would like to repay the overpayment by deductions from her
continuing compensation.
By decision dated June 3, 2015, OWCP finalized the preliminary overpayment
determination, finding that appellant received an overpayment of compensation in the amount of
$431.46. The decision further stated that she was at fault because “you would have not been
reasonably aware of the cause of the overpayment.” Repayment in the amount of $71.91 was to
be deducted from her continuing compensation, per compensation period.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 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.2 Section 8116 limits the right of an employee to receive compensation:
While an employee is receiving compensation, he or she may not receive salary, pay or
remuneration of any type from the United States.3
Section 10.421 of the implementing regulations provide that an employee may not
receive compensation for total disability concurrently with separation pay.4 FECA Bulletin No.
97-9 states that FECA benefits have to be adjusted for the FERS portion of SSA benefits because
the portion of the SSA benefit earned as a federal employee is part of the FERS retirement
package, and the receipt of FECA benefits and federal retirement concurrently is a prohibited

2

5 U.S.C. § 8102(a).

3

Id. at § 8116(a).

4

20 C.F.R. § 10.421(d); see L.J., 59 ECAB 264 (2007).

3

dual benefit.5 When OWCP discovers concurrent receipt of benefits, it must declare an
overpayment in compensation and give the usual due process rights.6
ANALYSIS -- ISSUE 1
The record supports that appellant received FECA wage-loss compensation commencing
in 2011 that was reduced on October 21, 2012, based on her capacity to earn wages as a security
officer. Appellant began receiving SSA disability benefits in January 2012 that converted to
SSA retirement benefits on December 20, 2014, when she reached full retirement age.7
The portion of the SSA retirement benefits appellant earned as a federal employee was
part of her FERS retirement package, and the receipt of benefits under FECA and federal
retirement benefits concurrently is a prohibited dual benefit.8 Appellant’s FECA compensation
was not offset until April 4, 2015. The SSA notified OWCP of the applicable SSA rates for
appellant and their effective dates. Based on these rates, OWCP was able to calculate the dual
benefit appellant received from December 1, 2014 through April 4, 2015 which yielded an
overpayment of compensation in the amount of $431.46. The record includes an overpayment
worksheet explaining the overpayment calculation.
The Board has reviewed OWCP’s calculations of the dual benefits appellant received for
the period December 1, 2014 through April 4, 2015 and finds that appellant received dual
benefits totaling $431.46. Thus, an overpayment of compensation in that amount was created.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”9
Section 10.433(a) of OWCP regulations provide that OWCP:
“[M]ay consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of
compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she receives from OWCP are proper. The recipient must
show good faith and exercise a high degree of care in reporting events which may
5

See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000, Exhibit 1
(February 1995).
6

Id. at Chapter 2.1000.17.d(4) (April 1996).

7

For individuals born from 1943 to 1954, full retirement age is 66 years, which in appellant’s case was
December 20, 2014.
8

5 U.S.C. § 8116; supra note 5.

9

Id. at § 8129; see Linda E. Padilla, 45 ECAB 768 (1994).

4

affect entitlement to or the amount of benefits. A recipient who has done any of
the following will be found to be at fault in creating an overpayment: (1) Made
an incorrect statement as to a material fact which he or she knew or should have
known to be incorrect; or (2) Failed to provide information which he or she knew
or should have known to be material; or (3) Accepted a payment which he or she
knew or should have known to be incorrect. (This provision applies only to the
overpaid individual).”10
To determine if an individual was at fault with respect to the creation of an overpayment,
OWCP examines the circumstances surrounding the overpayment. The degree of care expected
may vary with the complexity of those circumstances and the individual’s capacity to realize that
he or she is being overpaid.11
ANALYSIS -- ISSUE 2
The Board finds appellant at fault in the creation of the overpayment under the third
standard described above, that appellant accepted a payment she knew or should have known to
be incorrect.
On November 28, 2011 appellant informed OWCP that she had been awarded SSA
disability benefits effective January 2012. OWCP informed her that SSA disability benefits
would not be offset by FECA benefits but that, when she reached full-retirement age, her SSA
benefit would convert to a retirement benefit, which would be offset. Appellant reached fullretirement age on December 20, 2014.12 Thus, she knew or should have known after
November 11, 2011 that SSA retirement benefits would be subject to offset when she reached
full retirement age. As appellant continued to receive FECA compensation through April 4,
2015 that were not reduced by the offset, the Board finds that she was at fault in the creation of
the overpayment for the period December 1, 2014 through April 4, 2015 and is not entitled to
waiver of recovery for this period.13
As to appellant’s assertion on appeal, the Board notes that the final overpayment decision
dated June 3, 2015, which found that appellant received an overpayment of compensation in the
amount of $431.46, included contradictory language, stating that she was at fault because “you
would have not been reasonably aware of the cause of the overpayment.” However, the decision
also states that it was determined “that the preliminary finding that you were at fault in the matter

10

20 C.F.R. § 10.433; see Sinclair L. Taylor, 52 ECAB 227 (2001); see also 20 C.F.R. § 10.430.

11

Id. at § 10.433(b); Neill D. Dewald, 57 ECAB 451 (2006).

12

Supra note 7.

13

L.L., Docket No. 12-1724 (issued March 26, 2013).

5

of the overpayment was correct.”14 The Board finds the contradictory statement a scrivener’s
error as the June 3, 2015 decision clearly reflects that appellant was found at fault.15
LEGAL PRECEDENT -- ISSUE 3
OWCP’s implementing regulations provide that, if an overpayment of compensation has
been made to an individual entitled to further payments and no refund is made, OWCP shall
decrease later payments of compensation, taking into account the probable extent of future
payments, the rate of compensation, the financial circumstances of the individual and any other
relevant factors, so as to minimize any hardship.16
ANALYSIS -- ISSUE 3
The record supports that, in requiring repayment of the $431.46 overpayment by
deducting $71.91 from appellant’s compensation payments every four weeks, OWCP took into
consideration the financial information submitted by appellant as well as the factors set forth in
section 10.441(a) of its regulations and found that this method of recovery would minimize any
resulting hardship on appellant. Therefore, OWCP properly required repayment of the
overpayment by deducting $71.91 from appellant’s compensation payments every four weeks.17
CONCLUSION
The Board finds that OWCP properly determined that appellant was at fault in the receipt
of an overpayment of compensation in the amount of $431.46 and that OWCP properly required
recovery of the overpayment by deducting $71.91 every 28 days from her continuing
compensation payments.18

14

The April 15, 2015 preliminary overpayment finding clearly found appellant at fault in creating the
overpayment because she accepted a payment that she knew or should have known was incorrect.
15

See J.H., Docket No. 08-2432 (issued June 15, 2009).

16

20 C.F.R. § 10.441(a).

17

Id.; see C.P., Docket No. 13-1341 (issued January 6, 2014).

18

The Board notes that the overpayment has been repaid in full.

6

ORDER
IT IS HEREBY ORDERED THAT the June 3, 2015 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: October 21, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7