United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.H., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
SURFACE WAR CENTER, Port Hueneme, CA,
Employer
__________________________________________

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Docket No. 16-1213
Issued: September 11, 2017

Oral Argument June 20, 20171

Appearances:
Daniel M. Goodkin, Esq., for the appellant2
Office of Solicitor, for the Director

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 11, 2016 appellant, through counsel, filed a timely appeal from a March 4, 2016
merit decision and a May 4, 2016 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP).3 Pursuant to the Federal Employees’ Compensation Act4 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of this case.
1

On August 28, 2017 counsel submitted a summary of arguments presented at the June 20, 2017 oral argument.
As noted by counsel, these arguments were addressed at the oral argument before the Board.
2

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.
3

The Board notes that, following the May 4, 2016 nonmerit decision, OWCP received additional evidence.
However, the Board may only review evidence that was in the record at the time OWCP issued its final decision.
See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008);
G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

ISSUES
The issues are: (1) whether appellant has established total disability commencing
July 19, 2010 causally related to her accepted employment conditions; and (2) whether OWCP
properly denied appellant’s request for reconsideration of the merits of her claim pursuant to
5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.5 The facts as presented in the prior
decision are incorporated herein by reference. The relevant facts relating to this appeal are as
follows.
On July 15, 2010 appellant, then a 46-year-old systems accountant, filed an occupational
disease claim (Form CA-2) alleging that on October 13, 2008 she first became aware of a mild
degenerative neck condition, but did not realize its connection to her federal employment until
June 22, 2010. She stopped work on July 15, 2010 and resigned from the employing
establishment effective July 16, 2010.
On December 21, 2010 OWCP denied the claim, finding no causal relationship between
the diagnosed conditions and the claimed employment factors.
Appellant requested
reconsideration.
By decision dated September 15, 2011, OWCP accepted appellant’s claim for right
shoulder joint pain and cervical intervertebral disc degeneration based on an August 22, 2011
report by Dr. William Curran, Jr., an OWCP second opinion Board-certified orthopedic surgeon.
On October 3, 2011 appellant filed a claim for wage-loss compensation (Form CA-7)
beginning July 19, 2010.
In support of her claim for wage-loss compensation appellant submitted medical evidence
including reports from Dr. Brigitta Hufnagel-Pinney a treating Board-certified family medicine
physician; Dr. James R. McClurg, an examining physician; Dr. Kien Ta, a chiropractor;
Dr. Lokesh S. Tantuwaya, an examining Board-certified neurological surgeon; Dr. William W.
Winternitz, Jr., an examining Board-certified orthopedic surgeon; and Dr. Choll W. Kim, an
examining Board-certified orthopedic surgeon.
In an August 31, 2010 attending physician’s report (Form CA-20), Dr. Brigitta HufnagelPinney, a treating Board-certified family medicine physician, diagnosed cervical joint
spondylosis without myelopathy. She noted that appellant had just relocated to San Diego from
Woodland Hills, CA. Dr. Hufnagel-Pinney advised appellant that she could return to work on
August 31, 2010.

4

5 U.S.C. § 8101 et seq.

5

Docket No. 15-0770 (issued October 8, 2015).

2

Dr. Ta, in reports dated July 7, 2010 and April 14, 2011, diagnosed upper thoracic ribs
subluxation, thoracic and cervical myofascial pain syndrome due to upper thoracic ribs
subluxation, cervical spine degenerative disc disease, and cervical disc syndrome. In the July 7,
2010 report, he noted that appellant related that she was unable to perform her normal job duties
due to functional limitation and pain as the result of an October 13, 2008 accident and indicated
that she has not worked since July 16, 2010. In an April 14, 2011 report, Dr. Ta noted that
appellant’s condition had improved.
Dr. McClurg, in reports and progress notes covering the period September 26, 2011 to
June 26, 2013, diagnosed cervical sprain/strain and right impingement syndrome. He indicated
that appellant was capable of working with restrictions in reports and progress notes from 2011
through 2013.
By decision dated August 28, 2012, OWCP denied any periods of disability based
primarily on Dr. Curran’s report. Appellant filed a request for a hearing and by decision dated
April 22, 2013 the case was remanded for further development.
In a report dated July 9, 2013, Dr. Tantuwaya, based upon a review of medical evidence
and physical examination, diagnosed C5-6 cervical spondylosis with bilateral neural foramen.
He noted that appellant had related that she had resigned from the employing establishment on
July 16, 2010 and that she has been off work due to the inability of the employing establishment
to accommodate her work restrictions.
Dr. Winternitz, in reports dated April 23 and September 16, 2014 report and progress
notes for the period May 6 to July 14, 2014, provided physical examination findings and
diagnoses of cervical degenerative disc disease, right shoulder rotator cuff tendinitis,
subacromial impingement, and right C6 cervical radiculopathy. In the April 23, 2014 report,
appellant related that she had not worked since July 15, 2010 and he wrote “no” to the question
regarding work restrictions. In the subsequent progression notes, Dr. Winternitz noted that
appellant was capable of working with restrictions and wrote “yes” to the question regarding
work restrictions.
Appellant also submitted a July 10, 2014 report from Dr. Kim, who noted that appellant
had not worked since July 15, 2010 and deferred to Dr. Winternitz on appellant’s disability
status. Dr. Kim provided physical examination findings and diagnoses of C5-6 disc herniation
and right rotator cuff tendinitis.
OWCP reviewed the evidence of record following the remand but, by decision dated
November 14, 2014, found no further evidence to establish disability after July 19, 2010.
By decision dated October 8, 2015, the Board set aside the November 14, 2014 OWCP
decision and remanded the case for further proceedings consistent with its opinion. The Board
found that further clarification was required from Dr. Curran, the second opinion physician, as he
had failed to address whether appellant was disabled beginning July 19, 2010 due to her accepted
conditions.6

6

Docket No. 15-0770 (issued October 8, 2015).

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By letter dated January 14, 2016, OWCP referred appellant for an updated second
opinion evaluation with Dr. Curran. In a February 1, 2016 report, Dr. Curran reviewed the
statement of accepted facts, the medical evidence, and his prior report. He performed a physical
examination, noted appellant’s complaints, and diagnosed C5-6 multilevel disc disease, C5-6
severe right foraminal stenosis, right C5-6 nerve root impingement, and right shoulder
impingement syndrome. Based on the physical examinations performed and review of the
medical evidence, Dr. Curran opined that appellant was able to work with restrictions from
July 25, 2010 to August 23, 2011. In support of this conclusion, he referenced an April 14, 2011
report by Dr. Ta noting appellant stating she was unable to perform her normal job duties and
that she had not worked since July 16, 2010 and a 2014 report from Dr. Kim, which attributed
appellant’s disability to the employing establishment’s inability to accommodate her work
restrictions.
On February 23, 2016 OWCP received a report dated September 20, 2013 by
Dr. McClurg reiterating examination findings from his prior reports and diagnoses of cervical
sprain/strain and right impingement syndrome. Dr. McClurg indicated that appellant was
capable of working four hours per day with restrictions and a location close to her home.
By decision dated March 4, 2016, OWCP denied modification of the November 14, 2014
decision. It found the medical evidence failed to establish that appellant had any employmentrelated disability on and after July 19, 2010, the date appellant filed a Form CA-7 claiming
wage-loss compensation.
The record reflects that following the March 4, 2016 decision, OWCP received a
February 16, 2016 report from Dr. Winternitz containing examination findings, review of a
February 8, 2016 MRI scan, and diagnoses of other cervical disc degenerative, unspecified
cervical region.
On March 23, 2016 counsel requested reconsideration. He argued that appellant need not
show she was totally disabled when the employing establishment was unable to accommodate
her work restrictions.
Following appellant’s request for reconsideration, OWCP received medical evidence
previously considered including a November 11, 2013 report by Dr. McClurg; a July 9, 2013
report by Dr. Tantuwaya; reports dated August 29, 2012, July 10, September 8, 2014, from
Dr. Kim. Appellant also submitted a March 31, 2016 report by Dr. Winternitz, an examining
Board-certified orthopedic surgeon; January 7 and April 27, 2016 by Dr. Kim, and an April 12,
2016 nerve conduction study/electromyography study (NVC/EMG) by Dr. Robert S. Warren, a
Board-certified neurologist.
In reports dated January 7 and April 27, 2016, Dr. Kim reported that appellant was seen
for cervical spine complaints, which he attributed to an October 3, 2008 incident. He reiterated
the history as noted in his prior reports, reviewed objective tests, and provided examination
findings. Based on examination findings, review of objective tests, and medical history, Dr. Kim
diagnosed C5-6 disc herniation with right stenosis, greater on the right side and right shoulder
rotator cuff tendinitis.

4

In a March 31, 2016 report, Dr. Winternitz provided physical examination findings,
briefly noted the history of illness, and diagnosed cervical disc degeneration, right C6
radiculopathy, and right shoulder pain. Lastly, he provided work restrictions.
A NVC/EMG performed by Dr. Warren on April 12, 2016 revealed a normal
examination with no sign of motor radiculopathy.
By decision dated May 4, 2016, OWCP denied appellant’s request for reconsideration. It
found that the evidence submitted was either repetitive or had previously been considered.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA7 has the burden of proof to establish the
essential elements of her claim by the weight of the evidence.8 For each period of disability
claimed, the employee has the burden of proof to establish that he was disabled for work as a
result of the accepted employment injury.9 Whether a particular injury causes an employee to
become disabled for work, and the duration of that disability, are medical issues that must be
proved by a preponderance of probative and reliable medical opinion evidence.10
Under FECA the term “disability” means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.11 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.12 An employee who has a physical impairment causally related to his or her federal
employment, but who nonetheless has the capacity to earn the wages he or she was receiving at
the time of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.13 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in his employment, he is entitled to compensation for any loss of wages.
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.14
7

5 U.S.C. §§ 8101-8193

8

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986); Joseph M.
Whelan, 20 ECAB 55 (1968).
9

See Amelia S. Jefferson, id.; see also David H. Goss, 32 ECAB 24 (1980).

10

See Edward H. Horton, 41 ECAB 301 (1989).

11

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); Conard Hightower, 54 ECAB 796
(2003); 20 C.F.R. § 10.5(f).
12

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

13

Merle J. Marceau, 53 ECAB 197 (2001).

14

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

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ANALYSIS -- ISSUE 1
The Board finds that the record does not support appellant’s claim for wage-loss
compensation beginning July 19, 2010 due to her accepted cervical intervertebral disc
degeneration and right shoulder pain.
Voluntary retirement does not, by itself, raise an issue of disability.15 In order for
appellant to be entitled to any disability compensation, she must establish that she is disabled
from the modified duties she was performing at the time she retired.16 There is no probative
medical evidence establishing either total or partial disability due to the accepted employmentrelated accepted cervical intervertebral disc degeneration and right shoulder pain. Appellant
voluntarily retired effective July 16, 2010. Prior to retiring, she had performed her regular-duty
position without restrictions. The medical evidence of record does not establish that her
accepted cervical intervertebral disc degeneration and right shoulder pain conditions precluded
her from continuing to perform her duties as a systems account, the position she held prior to her
July 16, 2010 retirement.
The Board has had occasion to review similar cases where appellant filed a claim for
disability following voluntary retirement and resignation. For example, in the case of M.S.,17 the
claimant worked a modified duty as a result of her employment injury and continued to earn the
wages she previously received in their date-of-injury jobs. She voluntarily retired and
subsequently claimed compensation for wage-loss compensation. The Board found that OWCP
properly denied her claim for wage-loss compensation as the medical evidence did not support
that the accepted employment injury precluded the claimant from continuing to perform the
modified position she held prior to her voluntary retirement.
In the case of Joe H. Davis,18 the claimant contended that he was entitled to
compensation after November 9, 1999, the date he voluntarily retired, because limited duty was
not available from the employing establishment. The employing establishment noted, however,
that limited duty would have been available after the date he retired if he had provided medical
evidence establishing that he was in need of limited duty due to his employment injury, which
evidence he did not provide. The Board found that the claimant was not entitled to disability
compensation after the date of his voluntary retirement.
In the case of Stephen J. Vescelus,19 the claimant contended that he was entitled to
compensation beginning in 1995.
OWCP accepted a right shoulder strain on
September 29, 1995. Appellant resigned October 25, 1994 as he felt he had been denied a
promotion due to his accepted employment injury. The Board found that OWCP properly denied
claimant’s claim for wage-loss compensation as the medical evidence in the case failed to show
15

V.C., Docket No. 14-1252 (issued March 11, 2015); J.H., Docket No. 14-540 (issued July 1, 2014).

16

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

17

Docket No. 08-1194 (issued October 22, 2008).

18

Docket No. 04-1030 (issued February 2, 2005).

19

Docket No. 05-183 (issued May 19, 2005).

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that he was disabled from performing his duties on and after 1995 due to the accepted
employment injury.
The reports from Dr. Hufnagel-Pinney, Dr. McClurg, Dr. Kim, Dr. Ta, Dr. Tantuwaya,
and Dr. Winternitz, are of limited probative value because none of the physicians addressed
whether appellant’s disability during the claimed period was caused by the accepted employment
conditions.20
OWCP also received reports from Dr. Curran, a second opinion Board-certified
orthopedic surgeon. As instructed by the Board, it requested him to address whether the
accepted employment injury had caused disability for any period since the date of appellant’s
retirement. In his February 1, 2016 report, Dr. Curran reviewed the medical evidence and
statement of accepted facts, noted appellant’s complaints, and performed a new physical
examination. Based on a review of his past reports and the medical evidence from treating
physicians, Dr. Curran opined that appellant was not totally disabled from working on and after
July 19, 2010 causally related to the accepted employment conditions.
Appellant retired on July 16, 2010 and has not worked since that date. The record does
not demonstrate that her accepted cervical intervertebral disc degeneration and right shoulder
pain conditions precluded her from working.
At the oral argument counsel argued that appellant is entitled to wage-loss compensation
because the employing establishment failed to offer her a modified job within her restrictions
since her retirement in 2010. As discussed above, it is appellant’s burden of proof to establish
entitlement to wage-loss compensation for the period claimed. Appellant has not submitted any
evidence that the employing establishment would not have honored work restrictions, had she
not voluntarily retired on July 16, 2010.21
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,22
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
20

See S.E., Docket No. 08-2214 (issued May 6, 2009) (medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of causal relationship);
Conard Hightower, supra note 11.
21

See J.C., Docket No. 16-1200 (issued June 5, 2017). The employee filed a claim for periods of disability after
she relocated from California to Michigan and worked for a private employer. OWCP denied the claim for wageloss compensation noting in part that the employee had not established that she had contacted her federal employer
to verify whether work within her restrictions was available.
22

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

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considered by OWCP.23 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant’s application for review must be received by OWCP within one
year of the date of that decision.24 When a claimant fails to meet one of the above standards,
OWCP will deny the application for reconsideration without reopening the case for review on the
merits.25
ANALYSIS -- ISSUE 2
The underlying issue on reconsideration is whether appellant has submitted sufficient
evidence relevant to the issue of compensation for wage loss on and after July 15, 2010 causally
related to her accepted employment conditions. The Board finds that counsel’s request for
reconsideration neither alleged nor demonstrated that OWCP erroneously applied or interpreted a
specific point of law. Consequently, she was not entitled to a review of the merits based on the
first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
The Board further finds that appellant did not provide any relevant or pertinent new
evidence warranting the reopening of the case on the merits. The January 7 and April 27, 2016
reports from Dr. Kim diagnosed C5-6 disc herniation with right stenosis, greater on the right side
and right shoulder rotator cuff tendinitis. Dr. Winternitz, in a March 31, 2016 report, diagnosed
right shoulder pain, cervical disc degeneration, and right C6 radiculopathy. The April 12, 2016
NVC/EMG performed by Dr. Warren was normal. This evidence, while new to the present
claim, is not relevant to the claimed period of lost wages from work on and after July 19, 2010.
Thus, this information is insufficient to reopen appellant’s claim for further merit review.26
Appellant also submitted a November 11, 2013 report by Dr. McClurg; a July 9, 2013
report by Dr. Tantuwaya; and reports dated August 29, 2012, July 10 and September 8, 2014,
from Dr. Kim. Material which is duplicative of that already contained in the case record does
not constitute a basis for reopening a case.27 Since these reports were previously of record and
considered by OWCP, they do not constitute relevant and pertinent new evidence not previously
considered by OWCP.
The Board finds that appellant did not show that OWCP erroneously interpreted a
specific point of law, advance a relevant legal argument not previously considered or submit
relevant and pertinent new evidence not previously considered by OWCP. Appellant did not

23

20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).
24

Id. at 10.607(a).

25

Id. at § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB
598 (2006).
26

J.D., Docket No. 16-1253 (issued February 7, 2017); D’Wayne Avila, 57 ECAB 642 (2006).

27

M.V., Docket No. 17-0132 (issued April 7, 2017); Candace A. Karkoff, 56 ECAB 622 (2005).

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meet any of the regulatory requirements and OWCP properly declined to reopen her claim for
further merit review.28
CONCLUSION
The Board finds that appellant has not established entitlement to wage-loss compensation
on and after July 15, 2010 causally related to her accepted employment conditions. The Board
further finds that OWCP properly denied appellant’s request for reconsideration of the merits of
her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 4 and March 4, 2016 are affirmed.
Issued: September 11, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

28

A.K, Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694 (2007); Susan A. Filkins, supra note 23
(when an application for reconsideration does not meet at least one of the three requirements enumerated under
section 10.606(b)(2), OWCP will deny the application for reconsideration without reopening the case for a review
on the merits).

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Miami, FL, Employer
__________________________________________

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

Docket No. 06-1896
Issued: April 10, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 14, 2006 appellant filed a timely appeal of a merit decision of the Office of
Workers’ Compensation Programs dated July 13, 2006. 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 the Office properly terminated appellant’s compensation for wage
loss effective August 8, 2005.
FACTUAL HISTORY
The Office accepted that appellant sustained the following conditions as a result of an
April 24, 2002 motor vehicle accident: left calf and hamstring strain, lumbosacral strain, torn
medial meniscus left knee, anterior cruciate ligament (ACL) sprain and joint effusion with
baker’s cyst. Appellant underwent left knee surgery on June 24, 2004. He returned to work in a
light-duty position at four hours per day on October 18, 2004. Appellant’s compensation was
offset by his actual earnings.

Appellant’s attending physician, Dr. Stephen Wender, continued to indicate that he could
work in a sedentary position on a part-time basis. The Office referred appellant to Dr. Ismael
Montane, a Board-certified orthopedic surgeon, for a second opinion examination. In a report
dated April 11, 2005, Dr. Montane provided a history and results on examination. He reported a
normal examination and indicated that appellant did not have any objective findings.
Dr. Montane opined that appellant could return to work at his regular letter carrier position
without restriction.
The Office determined that a conflict existed in the medical evidence and referred
appellant to Dr. Orestes Rosabal, a Board-certified orthopedic surgeon, for a referee
examination. By report dated June 17, 2005, Dr. Rosabal provided a history and results on
examination. He diagnosed resolved cervical and lumbosacral strains, status post medical and
lateral meniscectomies of the left knee, status post patellar and medial compartment
chondroplasties of the left knee and right knee pain unrelated to the April 24, 2002 injury. He
noted that x-rays of the left knee were normal. Dr. Rosabal stated that it was not clear to him
how the work accident caused meniscal tears and he noted that contemporaneous reports showed
a normal knee examination. He stated that any permanent impairment to the left knee was more
than 50 percent related to preexisting degenerative changes. With respect to disability for work,
Dr. Rosabal stated, “Because of [appellant’s] ongoing subjective complaints related to his left
knee, I would suggest that he continue with his light duty with the limitations of walking and
standing and climbing to his tolerance. I would suggest that these work restrictions are related to
his ongoing preexisting degenerative changes in the left knee.”
The record contains a job offer for appellant dated June 10, 2005 for a full-time light-duty
position. Appellant accepted the position on June 13, 2005. A Form CA-3 (report of termination
of disability dated June 22, 2005 indicated that appellant was working eight hours per day.
By letter dated July 7, 2005, the Office notified appellant that it proposed to terminate his
compensation for wage loss on the grounds that the medical evidence demonstrated that his
employment-related disability had ceased. In a decision dated August 8, 2005, the Office
terminated compensation for wage-loss.
Appellant requested reconsideration by letter dated May 26, 2006. He argued that
Dr. Rosabal did not represent the weight of the evidence. He submitted medical evidence that
included a November 7, 2005 report from Dr. Wender who opined that appellant had a 25
percent impairment to his left knee. Dr. Wender stated that appellant could not work in any
capacity beyond a light-duty sedentary job.
By decision dated July 13, 2006, the Office denied modification of the prior decision.
LEGAL PRECEDENT
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.1 The Office may not terminate compensation without

1

Jorge E. Stotmayor, 52 ECAB 105, 106 (2000).

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establishing that disability ceased or that it was no longer related to the employment.2 The right
to medical benefits is not limited to the period of entitlement to disability. To terminate
authorization for medical treatment, the Office must establish that appellant no longer has
residuals of an employment-related condition that require further medical treatment.3
It is well established that when a case is referred to a referee examiner for the purpose of
resolving a conflict pursuant to 5 U.S.C. § 8123(a), the opinion of such specialist, if sufficiently
well rationalized and based on a proper factual and medical background, must be given special
weight.4
ANALYSIS
The August 8, 2005 Office decision terminated compensation for wage loss on the
grounds that employment-related disability had ceased. Although there is some indication in the
record that appellant had returned to full-time work, he was in a light-duty position and the
Office made a determination that he had no continuing employment-related disability.5
With respect to the medical evidence, there was a conflict to the nature and extent of a
continuing employment-related disability. Dr. Wender indicated that appellant could work four
hours light duty, while the second opinion examiner, Dr. Montane, found that he could return to
regular duty. The Federal Employees’ Compensation Act provides that, if there is a
disagreement between the physician making the examination for the United States and the
physician of the employee, the Secretary shall appoint a third physician who shall make the
examination.6 The implementing regulation states that this is called a referee examination and
the Office will select a physician who is qualified in the appropriate specialty and who has no
prior connection with the case.7
The referee examiner, Dr. Rosabal, reported that, while appellant could continue to work
light duty, his work restrictions were related to preexisting degenerative changes. He provided a
detailed medical report discussing results on examination and diagnostic testing. The referee
examiner provided a rationalized opinion based on a complete background and, therefore, his
opinion is entitled to special weight. Although appellant noted Dr. Rosabal’s questions
regarding the meniscal tears, Dr. Rosabal did not base his opinion on disability on refuted causal
relationship of an accepted meniscal tear of the left knee. He reported no objective findings from
the employment injuries and found that any subjective complaints were related to preexisting
degenerative changes.
2

Mary A. Lowe, 52 ECAB 223, 224 (2001).

3

Frederick Justiniano, 45 ECAB 491 (1994).

4

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

5

The term “disability” as used under the Act means the incapacity, because of injury in employment, to earn the
wages which the employee was receiving at the time of injury. Donald Johnson, 44 ECAB 540, 548 (1993);
20 C.F.R. § 10.5(f) (1999).
6

5 U.S.C. § 8123.

7

20 C.F.R. § 10.321 (1999).

3

The weight of the evidence rested with Dr. Rosabal and supported a finding that there
was no continuing employment-related disability. The Board finds that the Office properly
terminated any entitlement to continuing compensation for wage loss.
CONCLUSION
The Office properly determined that appellant’s employment-related disability had
ceased as of August 8, 2005.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 13, 2006 is affirmed.
Issued: April 10, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
U.S. POSTAL SERVICE, STOCKTON
PROCESSING & DISTRIBUTION CENTER,
Stockton, CA, Employer
__________________________________________

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Appearances:
Norman F. Nivens, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-825
Issued: October 6, 2008

Case Submitted on the Record

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

JURISDICTION
On January 24, 2008 appellant, through counsel, filed a timely appeal of a December 11,
2007 merit decision of the Office of Workers’ Compensation Programs, terminating her
compensation benefits on the grounds that she refused an offer of suitable work. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this termination
decision.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation benefits
effective December 23, 2007 on the grounds that she refused an offer of suitable work, pursuant
to 5 U.S.C. § 8106(c)(2).
FACTUAL HISTORY
On November 20, 1998 appellant, then a 43-year-old general clerk, filed a claim for an
occupational disease. She alleged that on October 21, 1998 she first became aware of her carpal

tunnel syndrome and realized that it was caused by her federal employment. Appellant
performed repetitive typing and as a result she experienced pain in both wrists, worse on the
right. The Office accepted the claim for bilateral carpal tunnel syndrome and right trigger finger.
It authorized carpal tunnel and right trigger releases which were performed between 1999 and
2006.
On October 25, 2005 appellant returned to modified-duty work eight hours per day. She
worked intermittently until August 31, 2006. At that time appellant was working four hours per
day.
By letter dated January 22, 2007, the Office referred appellant, together with a statement
of accepted facts, the case record and a list of questions to be addressed, to Dr. Arthur M.
Auerbach, a Board-certified orthopedic surgeon, for a second opinion medical examination.
In a February 28, 2007 medical report, Dr. Auerbach reviewed the history of appellant’s
employment-related injuries and medical treatment. He noted her complaints of constant pain in
both forearms, wrists and hands with tingling in the thumbs, middle and ring fingers and volar
palm which radiated up the middle and ulnar side of both forearms, right greater than left.
Appellant had perceived weakness of bilateral hand grasp. On physical examination,
Dr. Auerbach found no obvious muscle atrophy of either arm or forearm, that appellant could
barely make a fist with both hands, no obvious thenar, hyperthenar or intrinsic muscle atrophy of
either hand, barely visible carpal tunnel scars and no triggering of the ring fingers of either hand.
He also reported grip measurements, noting that grasping the Jamar Dynamometer caused pain in
appellant’s wrists and hands bilaterally. On neurological examination, Dr. Auerbach found deep
tendon reflexes to be +2 in the upper extremities, normal gross sensation to touch and pinwheel
but found decreased sensation on light touch in the ulnar fingers of both hands. There was
tenderness on volar wrist compression bilaterally and a positive Tinel’s sign on both wrists,
righter greater than left with tingling into the fingers of both hands. Dr. Auerbach reported a
positive Tinel’s sign on tapping the inner side of the elbow with tingling in an ulnar nerve
distribution down both forearms and hands. Appellant had normal range of motion of both
wrists. During the evaluation, she intermittently demonstrated and sighed complaining about
pain and tingling in both hands and wrists.
Dr. Auerbach provided a detailed review of appellant’s medical records. He stated that
she sustained chronic bilateral upper extremity repetitive stress syndrome with a history of
bilateral carpal tunnel syndrome and trigger fingers. Dr. Auerbach stated that appellant was
status post bilateral carpal tunnel releases in 1999 and October 2002, right trigger thumb release
in May 2006 and right long finger trigger release in March 2006. Appellant had intermittent
residual triggering of the middle fingers of both hands and evidence of chronic residual carpal
tunnel syndrome due to median nerve entrapment at the wrists bilaterally with evidence of
chronic nerve entrapment syndrome of the ulnar nerves at the elbow cubital tunnel syndrome.
Dr. Auerbach opined that appellant’s bilateral upper extremity problems had stabilized.
He stated that they were due to a combination of repetitive stress secondary to her work at the
employing establishment and an aggravation of her nonindustrial thyroid condition.
Dr. Auerbach opined that appellant reached maximum medical improvement on the date of his
examination. He determined that 80 percent of her permanent disability of the upper extremities

2

was related to her employment and 20 percent was related to her nonwork-related hypothyroid
condition. Dr. Auerbach stated that appellant was not able to perform work as a general clerk if
she needed to use her bilateral upper extremities in any way. Appellant could not push, pull or
lift any weight with both upper extremities. In addition, she could not perform repetitive
movements involving her wrists or elbows.
In a work capacity evaluation (Form OWCP-5c) dated February 23, 2007, Dr. Auerbach
stated that appellant would never be able to return to work to her date-of-injury position. He
advised that she could not reach or reach above her shoulder, which were permanent.
On March 12, 2007 the employing establishment offered appellant a modified-duty
position of security badge checker effective March 15, 2007 based on the physical restrictions
provided by Dr. Auerbach. The position involved sitting at the main entrance of a building
checking to ensure that all employees entering the building displayed a current
identification/security badge. It also involved intermittent checks of the workroom floor to make
sure all employees properly displayed their badges while working. These duties were to be
performed up to and not more than eight hours per day. If appellant encountered an employee
without an identification/security badge, she was instructed to notify a supervisor by radio. She
was also instructed to stay within her restrictions.
On March 16, 2007 appellant informed the Office that her attending physician stated that
the description of the offered position was too vague to make a suitability determination.
The employing establishment amended the March 12, 2007 job offer to reflect the
requirement that appellant walk to a supervisor to provide notification of an employee without an
identification/security badge. The physical requirements of the position involved no reaching
above the shoulders, twisting, repetitive movements of the wrists and elbows and pushing/pulling
and lifting.
By letter dated March 22, 2007, the Office requested that Dr. Auerbach review the
modified-duty job offer and determine whether appellant could perform the duties of this
position. After reviewing the job description and his prior report, Dr. Auerbach stated on
April 13, 2007 that appellant could perform the modified position.
On April 19, 2007 appellant advised the employing establishment that she was unable to
perform the duties of the offered position. She stated that, although the initial entrance to the
building had a turnstile, the door leading into the employee’s entrance was glass and it had to be
pulled open. The employing establishment advised that appellant could contact someone to let
her in the door.
On May 7, 2007 the employing establishment advised the Office that appellant refused to
return to work.
On May 20, 2007 appellant accepted the employing establishment’s modified-duty job
offer.1 On September 14, 2007 the employing establishment advised the Office that she had not
1

On June 4, 2007 appellant filed an application for disability retirement.

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returned to work despite her acceptance of the offered position. It noted that appellant had not
worked since April 2007.2
In reports dated March 15, May 27 and August 14, 2007, Dr. Vincent C. Leung, an
attending Board-certified orthopedic surgeon, stated that appellant had symptoms related to her
right ring trigger finger. He found that she could perform modified work with restrictions which
included typing up to 20 percent of the time and lifting, carrying, pushing and pulling no more
than three pounds with each hand up to four hours per day. In a February 26, 2007 treatment
note, Dr. Leung prescribed Vicodin and Zantac for appellant’s pain.
By letter dated October 1, 2007, the Office advised appellant that the offered security
badge checker position was suitable and remained available. Appellant had 30 days to either
accept the position or provide an explanation of the reasons for refusing the position. The Office
advised her that she would be paid for any difference in salary between the offered position and
her date-of-injury position and that she could accept the job without penalty. Appellant was
informed that her compensation could be terminated based on her refusal to accept a suitable
position pursuant to 5 U.S.C. § 8106(c)(2).
By letter dated October 30, 2007, the employing establishment again advised the Office
that appellant never returned to work.
On November 1, 2007 the Office advised appellant that it was aware of her refusal to
accept the offered position. It advised her that her reasons for refusing the offered position were
not valid. Appellant was given 15 days to accept the position.
On November 5, 2007 the Office received evidence from appellant’s attorney in support
of her contention that she was unable to perform the duties of the offered position. In letters
dated July 6, September 10 and October 29, 2007, appellant’s attorney stated that appellant
advised him that she could not perform the duties of the offered position because she could not
pull open the heavy fire doors that led into the building, workroom floor, lunchroom and her
office area, and to exit the restroom with her arms and hands. Appellant explained to him that
she could exit by pushing the doors with her buttocks but, she was not able to gain access to the
stated areas by pulling on the doors. She was also able to push the restroom door open with her
buttocks but, she could not exit until someone entered to assist her with the door.
In the October 29, 2007 letter, counsel stated that it appeared the employing
establishment’s accommodation of allowing someone to assist appellant to open the door was
reasonable but, on many occasions there was no one around to assist her. Appellant had to wait
considerable amounts of time for people to arrive to assist her if they arrived at all. Counsel
noted the restrictions set forth by Dr. Leung and Dr. Auerbach. He related that appellant
attempted to perform the offered position but encountered difficulty with the doors. Counsel
stated that Mr. Wagner, a supervisor, was informed about appellant’s difficulties with the doors
but no reasonable accommodation was provided. Counsel also noted that her medications caused
2

By decision dated May 24, 2007, the Office denied appellant’s claim for compensation for total disability during
the period April 30 to May 4, 2007 and May 14 to 25, 2007. Appellant is not appealing from the May 24, 2007
Office decision and it is not an issue in the current appeal.

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impaired reaction, the ability to think clearly and drowsiness. He stated that Dr. Thuhong T.
Truong, a Board-certified family practitioner, opined that appellant could not perform the offered
position while taking her prescribed medications because they caused drowsiness. Counsel
contended that appellant accepted the March 15, 2007 job offer and attempted to work under her
restrictions. He stated that Dr. Leung and Dr. Auerbach were not advised of the fire doors in her
work area. Counsel contended that the duties of the offered position were outside the restrictions
set by both physicians. He noted that appellant had continuing pain related to her employmentrelated bilateral carpal tunnel syndrome.
In a September 12, 2007 letter, Mr. Estes stated that appellant never requested him to
provide accommodation for opening any doors for her.
On October 22, 2007 Dr. Truong responded to questions posed by appellant’s attorney.
He stated that appellant could not safely operate a motor vehicle while taking Vicodin three
times a day because it caused drowsiness. Dr. Truong also stated that she could not be expected
to function adequately at work while taking her medications. He opined that appellant was not
able to deal with the fire doors at work without further injuring herself.
In a November 2, 2006 report, Dr. Leung stated that appellant sustained bilateral carpal
tunnel syndrome and trigger fingers of the right thumb, long and most recently bilateral ring
fingers. He advised that she could not perform her regular work duties but she could work with
restrictions. Appellant could lift and/or carry up to 3 pounds frequently and 10 pounds
occasionally. For every eight-hour workday, she could stand and/or walk less than eight hours,
sit less than eight hours per day and push and/or pull up to three pounds with each hand.
Appellant was restricted to occasional climbing, balancing, stooping, kneeling, crouching,
crawling, twisting, reaching, handling and fingering. She could frequently feel, see, hear and
speak.
In an October 25, 2007 affidavit, appellant stated that she accepted the offered position
and attempted to work. She reiterated that she was unable to perform the duties of the offered
position and that the employing establishment failed to provide reasonable accommodation.
Appellant also stated that sometimes the doors were propped open but not often. She contended
that pushing and pulling the doors exceeded the restrictions set forth by Dr. Auerbach and
Dr. Leung.
On November 21, 2007 the employing establishment stated that Wanda Smith, an
employee, would be appellant’s contact for assistance with entering doors. On November 21,
2007 the Office researched the availability of public transportation from appellant’s home to
work. It discovered that it was sparse and that the employing establishment would check on the
availability of carpools to commute to work.
On December 3, 2007 the Office was advised that the employing establishment’s
inspector general’s office had observed appellant driving against her physician’s restrictions and
opening a truck door without assistance or any noticeable difficulty.
On December 7, 2007 the employing establishment advised the Office that the offered
position was still available.

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By decision dated December 11, 2007, the Office terminated appellant’s compensation
finding she refused an offer of suitable work.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.3 Under section 8106(c)(2) of the Federal Employees’
Compensation Act, the Office may terminate the compensation of a partially disabled employee
who refuses or neglects to work after suitable work is offered to, procured by, or secured for the
employee.4 To justify termination, the Office must show that the work offered was suitable and
must inform appellant of the consequences of refusal to accept such employment.5 Section
8106(c) will be narrowly construed as it serves as a penalty provision, which may bar an
employee’s entitlement to compensation based on a refusal to accept a suitable offer of
employment.6
Section 10.517 of the Act’s regulations provides that an employee who refuses or
neglects to work after suitable work has been offered or secured has the burden of showing that
such refusal or failure to work was reasonable or justified.7 Pursuant to section 10.516, the
employee shall be provided with the opportunity to make such a showing before a determination
is made with respect to termination of entitlement to compensation.8
ANALYSIS
The Office accepted that appellant sustained bilateral carpal tunnel syndrome and right
trigger finger while in the performance of duty. It subsequently terminated her compensation
benefits effective December 23, 2007, finding that she refused an offer of suitable work based on
the medical opinion of Dr. Auerbach, an Office referral physician. The issue is whether the
Office properly determined that the offered position was medically suitable. The issue of
whether an employee has the physical ability to perform a modified position is a medical
question that must be resolved by probative medical evidence.9
In a February 28, 2007 report, Dr. Auerbach reviewed a history of appellant’s
employment injuries and medical treatment. He reported essentially normal findings on physical
and neurological examination. Dr. Auerbach stated that appellant sustained chronic bilateral
upper extremity repetitive stress syndrome with a history of bilateral carpal tunnel syndrome and
3

Linda D. Guerrero, 54 ECAB 556 (2003).

4

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

5

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

6

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

7

20 C.F.R. § 10.517(a); see Ronald M. Jones, supra note 5.

8

Id. at § 10.516.

9

See Gayle Harris, 52 ECAB 319 (2001).

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trigger fingers. He also stated that she was status post bilateral carpal tunnel and right thumb and
long finger trigger releases. Dr. Auerbach found that appellant had intermittent residuals of her
accepted employment injuries. He opined that her bilateral upper extremity problems had
stabilized. Dr. Auerbach stated that they were a combination of repetitive stress secondary to
appellant’s work at the employing establishment and aggravation of her nonwork-related
hypothyroid condition. He opined that appellant could not perform her regular work duties as a
general clerk if she was required to lift any weight with both upper extremities. Dr. Auerbach
stated that she could not push, pull or lift any weight with her upper extremities or engage in
repetitive movements with her wrists or elbows.
Dr. Auerbach’s OWCP-5c form stated that appellant could not work and that she was
permanently restricted from reaching and reaching above the shoulder.
In an April 13, 2007 supplemental report, however, Dr. Auerbach opined that appellant
could perform the duties of the offered security badge checker position after reviewing a
description of the position and his February 28, 2007 report.
The Board finds that Dr. Auerbach’s opinion is sufficiently well rationalized and based
upon a proper factual background such that it is the weight of the evidence on the issue of the
extent of appellant’s disability and work restrictions. He found that she was no longer totally
disabled due to her employment-related bilateral carpal tunnel syndrome and right trigger finger
and that she could perform modified-duty work with restrictions.
On March 12, 2007 the employing establishment offered appellant the position of
security badge checker. It required sitting at the main entrance of a building checking to ensure
that all employees entering the building displayed a current identification/security badge and
intermittent checks of the workroom floor to make sure all employees properly displayed their
badges while working. These duties were to be performed up to and not more than eight hours
per day. If appellant encountered an employee without an identification/security badge, she was
instructed to notify a supervisor by radio. She was also instructed to work within her restrictions.
Subsequently, in response to an attending physician’s opinion that the physical
description of the offered position was too vague, the employing establishment amended the
March 12, 2007 job offer by requiring appellant to walk to a supervisor to provide notification
about an employee who did not have an identification security badge. It listed the physical
demands of the position which included no reaching above the shoulders, twisting, repetitive
movements of the wrists and elbows and pushing/pulling and lifting. The Board finds that this
position conformed to Dr. Auerbach’s work restrictions.
The Board finds that the security badge checker position was medically suitable. The
weight of the medical evidence establishes that appellant was no longer totally disabled from
work and has the physical capacity to perform the duties listed in the amended March 12, 2007
job offer.
The Office notified appellant of its finding that the security badge checker job offer was
suitable and of the consequences for not accepting a suitable offer. Prior to the issuance of this
letter, appellant accepted the offered position. However, she did not return to work. Although

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appellant contends that she returned to work and was unable to perform the duties of the offered
position because she could not pull open the doors to the entrance of the employing
establishment’s building, she did not submit any evidence to substantiate her allegations. The
employing establishment advised the Office that appellant accepted the job offer but never
returned to work. It stated that she had not worked since April 2007. Based on the foregoing,
the Board finds that appellant’s failure to report to work constituted rejection of the offered
position.
After the issuance of the Office’s suitability letter, the employing establishment again
informed the Office that appellant had not returned to work.
In accordance with established procedures, the Office found that appellant’s reasons for
refusing the position were not valid and provided her an additional 15 days to accept the position
prior to termination of compensation.
Appellant stated that she could not use her arms and hands to pull open heavy fire doors
that led in the building, workroom floor, lunchroom, her work area and restroom. She stated that
she had to obtain assistance from another person to enter the doors. Appellant related that the
employing establishment’s offer to accommodate her by designating someone to help her enter
the doors was reasonable but that no one was around to help her and Mr. Estes and Mr. Wagner
did not respond to her requests for help. Mr. Estes, however, stated that she never requested him
to accommodate her problem with opening doors. The employing establishment designated
Ms. Smith as appellant’s contact person to help her open doors.
Appellant submitted Dr. Truong’s October 27, 2007 report. Dr. Truong stated that she
could not drive a car or be expected to perform adequately at work while taking her medications
because they caused drowsiness. Appellant opined that she was unable to handle the doors at
work without further injuring herself. Dr. Truong did not indicate that he reviewed a description
of the offered position. Further, he did not provide any medical rationale explaining how or why
appellant’s medications prevented her from performing the offered position. The Board finds
that Dr. Truong’s report is insufficient to support appellant’s refusal of suitable work.
Dr. Leung’s November 2, 2006 report stated that appellant sustained impairment causally
related to her employment-related injuries. He stated that she could perform modified-duty work
with restrictions which included lifting and carrying up to 3 pounds frequently and 10 pounds
occasionally, standing, walking and sitting less than eight hours per day and pushing and pulling
up to 3 pounds. Dr. Leung stated that appellant could occasionally climb, balance, stoop, kneel,
crouch, crawl, twist, reach, handle and finger. The Board finds that the offered position
conforms to Dr. Leung’s restrictions.
The employing establishment stated that appellant had been observed driving which was
against her physician’s restrictions and opening a truck door without assistance or any noticeable
difficulty. It also planned to inquire about carpool service for appellant as public transportation
was not readily available for her commute to work.
The Board finds that the job offered was medically and vocationally suitable and the
Office followed its procedures prior to termination of compensation.

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CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation benefits
effective December 23, 2007 on the grounds that she refused an offer of suitable work, pursuant
to 5 U.S.C. § 8106(c)(2).
ORDER
IT IS HEREBY ORDERED THAT the December 11, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 6, 2008
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.M., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Hartford, CT,
Employer
__________________________________________

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

Docket No. 12-381
Issued: July 17, 2012

Case Submitted on the Record

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

JURISDICTION
On December 15, 2011 appellant filed a timely appeal from a June 28, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) finding an overpayment of
compensation. 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 in the amount of $1,213.88 for the period November 8 to 20, 2010; (2) whether
OWCP properly determined that appellant was at fault in the creation of the overpayment and
therefore not entitled to a waiver; and (3) whether OWCP properly set the rate of recovery at
$100.00 per month.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 28, 1998 appellant, then a 48-year-old mail handler, sustained a left lower
extremity injury while in the performance of duty. OWCP accepted his occupational disease
claim, assigned File No. xxxxxx766, for aggravation of left knee arthritis.2 Appellant was placed
on the periodic rolls effective September 27, 2009 and received disability compensation through
November 20, 2010.
His final payment was $2,614.51 for the period October 24 to
November 20, 2010.
In an October 1, 2009 letter, OWCP advised appellant that disability compensation was
payable so long as he remained unable to perform his regular job duties due to his accepted
condition. It further advised that he was expected to return to work when he was no longer
totally disabled. Appellant signed and submitted an October 1, 2009 certification form
acknowledging these requirements.
A November 26, 2010 notice from the employing establishment advised OWCP that
appellant returned to modified full-time duty effective November 8, 2010. The case record
confirms that OWCP issued a $2,614.51 periodic rolls compensation check for disability on
November 20, 2010 covering the period October 24 to November 20, 2010. OWCP calculated
that, from November 8 to 20, 2010, appellant received net wage-loss compensation of $1,213.88.
On December 8, 2010 OWCP made preliminary findings that appellant received an
overpayment of $1,213.88 from November 8 to 20, 2010 and was at fault in its creation because
he knowingly accepted compensation to which he was not entitled. It explained how the
overpayment occurred and was calculated. Appellant was also informed of his options if he
wished to contest the fact or amount of overpayment or request a waiver of recovery.
Appellant requested a prerecoupment hearing on January 7, 2011. He submitted a
January 7, 2011 overpayment recovery questionnaire indicating that his total monthly income
and expenses were $2,500.00 and $2,725.00, respectively.3 During the April 18, 2011 telephonic
hearing, appellant testified that he experienced multiple heart attacks and surgical complications
before he returned to work on November 8, 2010. He received a check from OWCP for the
period October 24 to November 20, 2010, but was unaware of an overpayment. Appellant was
later placed on limited duty. He remarked that he was amenable to paying installments of up to
$100.00 to satisfy the debt.
By decision dated June 28, 2011, OWCP’s hearing representative finalized the $1,213.88
overpayment. He pointed out that appellant was paid $2,614.51 for the period October 24 to
November 20, 2010, or approximately $93.375 per day for 28 days. Since appellant resumed
work on November 8, 2010, he was only entitled to disability compensation for 15 days, which
amounted to $1,400.63. Therefore, he received an overpayment of $1,213.88, the difference of
$2,614.51 and $1,400.63. The hearing representative also held that appellant was at fault in the
creation of the overpayment because he was notified by OWCP in an October 1, 2009 letter that
2

OWCP combined this claim with File No. xxxxxx842.

3

In a subsequent questionnaire dated May 12, 2011, appellant reduced his total monthly expenses to $2,450.00.

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he was not entitled to disability compensation if he returned to work and submitted a signed
certification form acknowledging receipt of this letter. In order to minimize hardship, appellant
was advised to repay the balance at a rate of $100.00 per month.
LEGAL PRECEDENT -- ISSUES 1 & 2
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.4 The
statute places limitations on an employee’s right to receive compensation benefits. Section 8116
provides that, while an employee is receiving compensation, he or she may not receive salary,
pay or remuneration of any type from the United States, except in limited circumstances.5
“Temporary total disability” is defined as the inability to return to the position held at the
time of injury or earn equivalent wages or to perform other gainful employment, due to the
work-related injury.6 It is well established that an employee is not entitled to compensation for
temporary total disability after returning to work.7 Furthermore, an employee is not entitled to
receive temporary total disability compensation and actual earnings for the same period.
OWCP’s procedures provide that an overpayment in compensation is created when a claimant
returns to work but continues to receive wage-loss compensation.8
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 Conversely, a
waiver of recovery is not possible if the claimant is at fault in creating the overpayment.10
A claimant who has done any of the following will be found to be at fault with respect to
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; (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. Whether or not an individual was at fault depends on the
circumstances surrounding the overpayment. The degree of care expected may vary with the
complexity of those circumstances and the individual’s capacity to realize that he or she is being

4

5 U.S.C. § 8102(a).

5

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

6

20 C.F.R. § 10.400(b).

7

W.B., Docket No. 09-1440 (issued April 12, 2010).

8

D.C., Docket No. 09-1460 (issued April 19, 2010); Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Initial Overpayment Actions, Chapter 6.200.2(a) (June 2009).
9

5 U.S.C. § 8129(b); Linda E. Padilla, 45 ECAB 768 (1994).

10

Donald L. Overstreet, 54 ECAB 678 (2003); Gregg B. Manston, 45 ECAB 344 (1994).

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overpaid.11 In applying the tests to determine fault, OWCP applies a “reasonable person”
standard.12
ANALYSIS -- ISSUES 1 & 2
Appellant specifies on appeal that he does not contest the fact or amount of overpayment.
In addition, he does not dispute that he is not entitled to waiver of recovery.
The case record supports that appellant was placed on the periodic rolls effective
September 27, 2009 and received disability compensation. His final payment was $2,614.51 for
the period October 24 to November 20, 2010. OWCP was notified on November 26, 2010 that
appellant returned to full-time duty as of November 8, 2010. It subsequently terminated
disability compensation retroactive to the date of return. Appellant also confirmed that he
resumed work on November 8, 2010 at the April 18, 2011 prerecoupment hearing. Because he
received wage-loss compensation for total disability after he returned to his federal employment,
an overpayment was clearly created. The Board has held that OWCP must provide a clearly
written statement explaining how the overpayment was calculated.13 In this case, OWCP
detailed that appellant was paid $2,614.51 for the period October 24 to November 20, 2010, a
daily rate of $93.375 per day for 28 days. Because appellant resumed work on November 8,
2010, he was no longer totally disabled and was only entitled to disability compensation from
October 24 to November 7, 2010. This amounted to $1,400.63, after multiplying $93.375 by 15
days. OWCP subtracted $1,400.63 from $2,614.51 to calculate an overpayment of $1,213.88.
The Board finds that OWCP properly determined the fact and amount of the overpayment.
The Board further finds that OWCP properly determined that appellant was at fault in the
creation of the overpayment under the third fault standard as noted above. The case record
shows that OWCP advised appellant in an October 1, 2009 letter that disability compensation
was payable so long as he remained unable to perform his regular job duties due to his accepted
left knee injury and that he was expected to return to work when he was no longer totally
disabled. Appellant signed and submitted an October 1, 2009 certification form acknowledging
these conditions.14 Although he later alleged during the prerecoupment hearing that he was
unaware of an overpayment when he received his last compensation payment for the period
October 24 to November 20, 2010, he should have reasonably known that he was accepting an
incorrect amount since he returned to work in the interim. Therefore, appellant was at fault in
creating the overpayment and not eligible for waiver of recovery.

11

20 C.F.R. § 10.433.

12

Ralph P. Beachum, Sr., 55 ECAB 442, 447 (2004).

13

O.R., 59 ECAB 432 (2008); Sandra K. Neil, 40 ECAB 924 (1989). See also 20 C.F.R. § 10.431; FECA
Procedure Manual, supra note 8, Chapter 6.200.4(a).
14

Furthermore, OWCP includes on each periodic check a clear indication of the period for which payment is
being made. A form is sent to the recipient with each supplemental check which states the date and amount of the
payment and the period for which payment is being made. By these means, OWCP puts the recipient on notice that
a payment was made and the amount of the payment. 20 C.F.R. § 10.430.

4

LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction to review recovery of an overpayment is limited to those cases
in which OWCP seeks recovery from continuing compensation payments under FECA.15 The
amount of adjustment of continuing compensation to recover an overpayment lies within
OWCP’s discretion. The analysis that determines that amount of adjustment is substantially the
same as that used to determine waiver.16
ANALYSIS -- ISSUE 3
Appellant contends on appeal that the rate of recovery should be reduced to $25.00 per
pay period due to financial circumstances. The case record indicates, however, that he is no
longer receiving wage-loss compensation. Therefore, the Board does not have jurisdiction with
respect to OWCP’s recovery of the overpayment in this case.17
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
in the amount of $1,213.88 for the period November 8 to 20, 2010, was at fault in the creation of
the overpayment, and was not entitled to a waiver. The Board does not have jurisdiction to
review the method of overpayment.

15

George A. Rodriguez, 57 ECAB 224 (2005); Levon H. Knight, 40 ECAB 658 (1989).

16

R.H., supra note 5; Howard R. Nahikian, 53 ECAB 406, 411 (2002).

17

Robert S. Luciano, 47 ECAB 793, 799 (1996). See also 20 C.F.R. § 10.441(b) (overpayment subject to
provisions of the Federal Claims Collection Act).

5

ORDER
IT IS HEREBY ORDERED THAT the June 28, 2011 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: July 17, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Birmingham, AL, Employer
__________________________________________

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

Docket No. 11-397
Issued: October 12, 2011

Case Submitted on the Record

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

JURISDICTION
On December 7, 2010 appellant filed a timely appeal from a September 20, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) which denied her claim for
wage-loss compensation. Pursuant to the Federal Employees’ Compensation Act (FECA)1 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’s disability during the period March 19 to May 25, 2010 is
causally related to the August 29, 2009 employment injury.
FACTUAL HISTORY
On September 2, 2009 appellant, then a 65-year-old, rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that she bruised cartilage on her left knee after hitting it on the door

1

5 U.S.C. § 8101 et seq.

handle of her work vehicle in the performance of duty on August 29, 2009. She stopped working
on September 1, 2009.
On November 30, 2009 appellant filed a recurrence claim (Form CA-2a) indicating that a
recurrence occurred on November 10, 2009. She submitted medical evidence in support of her
claim.
In an August 31, 2009 medical report, an unidentifiable physician diagnosed pain in
lower leg joint and obesity.
In a November 10, 2009 medical report, Dr. Albert E. Smith, III, a Board-certified family
medicine physician, diagnosed varicose veins in the lower extremities and osteoarthrosis of the
lower leg. In a November 20, 2009 progress report, he reviewed a left knee magnetic resonance
imaging (MRI) scan and diagnosed tear of the posterior horn of the medial meniscus, extensive
degenerative changes with loss of cartilage and moderate-sized joint effusion.
By letter dated December 24, 2009, OWCP acknowledged receipt of appellant’s
traumatic injury and recurrence claims and informed her that the evidence submitted was
insufficient to establish that she sustained an injury. It allotted 30 days for appellant to submit
new evidence and respond to its inquiries.
Appellant submitted a January 8, 2010 medical note from Dr. Smith advising that she was
unable to work until after she had knee surgery.
By decision dated January 29, 2010, OWCP denied appellant’s claim on the grounds that
the medical evidence submitted was not sufficient to establish fact of injury.
By letter dated January 29, 2010, OWCP notified appellant that it could not consider her
claim for a recurrence as her traumatic injury claim had been denied.
On February 10, 2010 appellant requested reconsideration of OWCP’s January 29, 2010
decision and submitted additional evidence.
In a December 9, 2009 medical report, Dr. Theodis Buggs, Jr., a Board-certified
orthopedic surgeon, diagnosed left knee torn medial meniscus with degenerative joint disease. In
a December 16, 2009 progress report, he reiterated his diagnosis.
In a December 21, 2009 medical report, Dr. Smith reiterated his diagnosis of
osteoarthrosis of lower leg. In a report dated February 5, 2010, he opined that the trauma
appellant sustained on August 29, 2009 worsened a degenerative knee condition which likely
preexisted but had been asymptomatic.
By decision dated April 7, 2010, OWCP accepted appellant’s claim for tear of posterior
horn of left medial meniscus.
In a March 31, 2010 medical note, Dr. Smith opined that appellant continued to be unable
to work due to her left knee condition. He explained that she did not have her surgery previously
due to the fact that she experienced a heart attack on January 4, 2010.

2

On May 28, 2010 appellant filed a claim for wage-loss compensation (Form CA-7) for
the period March 19 to May 25, 2010. She submitted a time analysis form (CA-7a) and
resubmitted medical notes by Dr. Smith dated January 8 and March 31, 2010.
On June 8, 2010 the employing establishment controverted appellant’s claim. It indicated
that appellant was claiming 560 hours of leave without pay when she should be claiming 384
hours as she claimed 10 weeks of pay, or 400 hours less the 16 hours of sick leave, leaving a
balance of 384 hours. The employing establishment noted that Dr. Smith had written her off
work until she was able to have left knee surgery for her accepted condition. It challenged
payment of compensation for April 10 to 16, 2010 as appellant received 16 hours of sick leave as
compensation for 2 days work during that week.
By letter dated June 15, 2010, OWCP notified appellant that his claim for compensation
was incomplete and requested additional evidence. It allotted 30 days for appellant to respond to
its inquiries.
In a July 16, 2010 medical report, Dr. David Sibley, a physician Board-certified in
internal medicine and cardiovascular disease, indicated that appellant has coronary artery disease
and a history of intracoronary stent placements, the last of which was placed in April 2010.
Dr. Sibley noted that appellant had severe cervical spondylosis with stenosis and arthritic disease
in both of her knees. He opined that her cervical spondylosis and degenerative joint disease
disabled her for work.
A series of requests for or notifications of absence by the employing establishment
indicated that appellant took sick leave for the following periods: September 1 to 5,
September 11 to 15, November 10 to 14, November 20, December 9, December 17, and
December 19 to 27, 2009, January 5 to 21, and January 25 to February 6, 2010.
Appellant submitted return to work slips by Dr. Smith for September 8, 2008,
November 16, 2009, December 28, 2009 and January 4, 2010 and resubmitted medical reports by
Dr. Smith dated November 10, 2009 to March 31, 2010. She also resubmitted an August 31,
2009 medical report by an unidentifiable physician.
On April 15, 2010 appellant filed a claim for wage-loss compensation (Form CA-7) for
the period August 3, 2009 to April 18, 2010.
By decision dated September 20, 2010, OWCP denied appellant’s claim for disability for
the period March 19 to May 25, 2010 on the grounds that the medical evidence submitted was
not sufficient to support disability for the period claimed.
LEGAL PRECEDENT
Section 8102(a) of FECA2 sets forth the basis upon which an employee is eligible for
compensation benefits. That section provides: “The United States shall pay compensation as
specified by this subchapter for the disability or death of an employee resulting from personal
2

5 U.S.C. § 8102(a).

3

injury sustained while in the performance of his duty....” In general the term “disability” under
FECA means “incapacity, because of an employment injury, to earn the wages the employee was
receiving at the time of injury.”3 This meaning, for brevity, is expressed as disability for work.4
Appellant, for each period of disability claimed, has the burden of proving by a preponderance of
the reliable, probative and substantial evidence that she is disabled for work as a result of her
employment injury. Whether a particular injury caused an employee to be disabled for
employment and the duration of that disability are medical issues which must be proved by the
preponderance of the reliable probative and substantial medical evidence.5
Disability is not synonymous with physical impairment, which may or may not result in
an incapacity to earn wages. An employee who has a physical impairment causally related to his
or her federal employment, but who nonetheless has the capacity to earn the wages he or she was
receiving at the time of injury, has no disability as that term is used under FECA and is not
entitled to compensation for loss of wage-earning capacity. When, however, the medical
evidence establishes that the residuals of an employment injury are such that, from a medical
standpoint, they prevent the employee from continuing in his or her employment, the employee
is entitled to compensation for any loss of wage-earning capacity resulting from the employment
injury.6 The Board will not require OWCP to pay compensation for disability in the absence of
any medical evidence directly addressing the particular period of disability for which
compensation is claimed. To do so would essentially allow employees to self-certify their
disability and entitlement to compensation.7
ANALYSIS
The Board finds appellant is not entitled to wage-loss compensation for the period
March 19 to May 25, 2010 causally related to the August 29, 2009 employment injury. The
Board finds that appellant submitted no rationalized medical evidence explaining how her work
activities materially worsened or aggravated her left knee condition and caused her to be totally
disabled for work for the period March 19 to May 25, 2010.
On November 20, 2009 Dr. Smith diagnosed tear of the posterior horn of the medial
meniscus, extensive degenerative changes with loss of cartilage, and moderate-sized joint
effusion based on his review of a left knee MRI scan. On January 8, 2010 he advised that
appellant was unable to work until after she had knee surgery. In his report dated February 5,
2010, Dr. Smith opined that the trauma appellant sustained on August 29, 2009 worsened a
degenerative knee condition which likely preexisted but had been asymptomatic. On March 31,
2010 he opined that appellant continued to be unable to work due to her left knee condition as
3

20 C.F.R. § 10.5(f). See also William H. Kong, 53 ECAB 394 (2002); Donald Johnson, 44 ECAB 540, 548
(1993); John W. Normand, 39 ECAB 1378 (1988); Gene Collins, 35 ECAB 544 (1984).
4

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

5

Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

6

Merle J. Marceau, 53 ECAB 197 (2001).

7

Fereidoon Kharabi, supra note 5.

4

her surgery was postponed due to a heart attack on January 4, 2010. Dr. Smith completed return
to work slips for September 8, 2008, November 16, 2009, December 28, 2009 and
January 4, 2010. He provided a firm diagnosis and simply advised appellant not to work until
after knee surgery, however, he did not provide a rationalized medical explanation as to how the
residuals of the August 29, 2009 employment injury prevented her from continuing in her
employment. Therefore, appellant has not met her burden of proof to establish that she is
entitled to compensation.
In a July 16, 2010 medical report, Dr. Sibley indicated that appellant had coronary artery
disease and a history of intracoronary stent placements. He noted that appellant had severe
cervical spondylosis with stenosis and arthritic disease in both of her knees. Dr. Sibley opined
that her cervical spondylosis and degenerative joint disease disabled her for work. Although
Dr. Sibley opined that appellant was disabled, he failed to provide a rationalized medical
explanation as to how the residuals of the August 29, 2009 employment injury prevented her
from continuing to work. Thus, appellant did not meet her burden of proof.
In a December 9, 2009 medical report, Dr. Buggs diagnosed left knee torn medial
meniscus with degenerative joint disease. The Board has held that medical evidence that does
not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.8 As Dr. Buggs did not provide a rationalized medical
explanation as to how the residuals of appellant’s August 29, 2009 employment injury prevented
appellant from continuing in her employment, appellant did not meet her burden of proof.
In an August 31, 2009 medical report, an unidentifiable physician diagnosed pain in
lower leg joint and obesity. This form, lacking proper identification, cannot be considered as
probative evidence. A medical report may not be considered as probative medical evidence if
there is no indication that the person completing the report qualifies as a physician as defined in
FECA.9 Therefore, appellant did not meet her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her
disability for the period March 19 to May 25, 2010 was causally related to the August 29, 2009
employment injury.

8

See C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

9

See Merton J. Sills, 39 ECAB 572 (1988). See also Bradford L. Sutherland, 33 ECAB 1568 (1982).

5

ORDER
IT IS HEREBY ORDERED THAT the September 20, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 12, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 12-1806
Issued: February 4, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 29, 2012 appellant filed a timely appeal from a March 26, 2012 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 more than a 23 percent right arm permanent
impairment and a 10 percent left arm permanent impairment.
FACTUAL HISTORY
On September 14, 1991 appellant, then a 35-year-old letter sorting machine clerk, filed an
occupational claim (Form CA-2) alleging carpal tunnel syndrome as a result of repetitive activity
in her federal employment. OWCP accepted the claim for bilateral carpal tunnel syndrome.
1

5 U.S.C. § 8101 et seq.

Appellant worked in a light-duty position, stopped working in April 2006 and returned to a lightduty position on March 1, 2008.
In a report dated August 15, 2008, the attending orthopedic surgeon, Dr. Kenneth
Lippman, reviewed a history of treatment and results on examination. He opined that appellant
had a 25 percent right arm impairment and a 20 percent left arm impairment. Dr. Arnold T.
Berman, an OWCP medical adviser, reviewed the evidence on December 15, 2008. He opined
that, under the fifth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (hereinafter A.M.A., Guides), appellant had a 23 percent right arm
impairment and a 10 percent left arm impairment based on sensory deficit.
By decision dated January 28, 2009, OWCP granted schedule awards for a 23 percent
right arm and 10 percent left arm permanent impairment. The period of the awards was 102.96
weeks commencing August 15, 2008 to August 5, 2010.
On October 31, 2011 appellant submitted a claim for compensation (Form CA-7) for an
additional schedule award. The record indicates that on August 8, 2011 appellant submitted a
July 26, 2011 report from Dr. Inder Singh, an internist, who stated that she still had pain and
numbness in her hands and wrist.
By decision dated December 5, 2011, OWCP found appellant was not entitled to an
additional schedule award.
On December 13, 2011 appellant submitted a November 9, 2011 report from
Dr. Lippman who stated that appellant was seen in 2008 and was currently being treated by
Dr. Singh. Dr. Lippman provided results on examination and stated that the findings were
consistent with carpal tunnel syndrome. He opined that appellant had a 20 percent impairment of
each arm and that he had completed a “figure 15-2 worksheet.”2
In a report dated March 21, 2012, Dr. Morley Slutsky, an OWCP medical adviser, stated
that he could not determine how Dr. Lippman rated the degree of impairment. He noted that,
under the sixth edition of the A.M.A., Guides, Table 15-23 was the relevant table for
compression neuropathy. Further, the maximum impairment allowed under this table was nine
percent. Dr. Slutsky stated that a peripheral neuropathy table would be used only if Table 15-23
could not be applied and that Dr. Lippman did not show how he utilized the table to rate
impairment.
By decision dated March 26, 2012, OWCP found appellant was not entitled to an
additional schedule award. It found the medical evidence was insufficient to warrant greater
impairment to either upper extremity.

2

The record does not contain the worksheet completed by Dr. Lippman.

2

LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants.5 The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses. OWCP procedures provide that, effective
May 1, 2009, all schedule awards are to be calculated under the sixth edition of the A.M.A.,
Guides.6 Any recalculations of previous awards which result from hearings or reconsideration
decisions issued on or after May 1, 2009, should be based on the sixth edition of the A.M.A.,
Guides. A claimant who has received a schedule award calculated under a previous edition and
who claims an increased award, will receive a calculation according to the sixth edition for any
decision issued on or after May 1, 2009.7
A claimant seeking compensation under FECA has the burden to establish the essential
elements of her claim.8 With respect to a schedule award, it is appellant’s burden of proof to
establish an increased schedule award.9 A claimant may seek an increased schedule award if the
evidence establishes that she sustained an increased impairment causally related to an
employment injury.10 The medical evidence must include a detailed description of the
permanent impairment.11
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in
Table 15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant
text.12 In Table 15-23, grade modifier levels (ranging from 0 to 4) are described for the
categories test findings, history and physical findings. The grade modifier levels are averaged to
arrive at the appropriate overall grade modifier level and to identify a default rating value. The
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

See Ronald R. Kraynak, 53 ECAB 130 (2001); August M. Buffa, 12 ECAB 324 (1961).

6

FECA Bulletin No. 09-03 (issued March 15, 2009); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Schedule Awards, Chapter 3.700 (January 2010).
7

Id.

8

John W. Montoya, 54 ECAB 306 (2003).

9

Edward W. Spohr, 54 ECAB 806, 810 (2003).

10

See Rose V. Ford, 55 ECAB 449 (2004).

11

See Vanessa Young, 55 ECAB 575 (2004).

12

A.M.A., Guides 448-50.

3

default rating value may be modified up or down by one percent based on functional scale, an
assessment of impact on daily living activities.13
ANALYSIS
Appellant received a schedule award on January 28, 2009 for impairment of 23 percent to
the right arm and 10 percent to the left arm. She seeks an increased schedule award. It is
appellant’s burden of proof to establish increased impairment as determined under the sixth
edition of the A.M.A., Guides.
Appellant submitted a November 9, 2011 report from Dr. Lippman who stated that she
had 20 percent impairment to each arm. This report is of diminished probative value as
Dr. Lippman provided no explanation as to how this rating was calculated. Dr. Lippman did not
identify any tables under the sixth edition of the A.M.A., Guides or otherwise explain his
determination. A medical report that does not describe the basis for the impairment rating or
refer to specific tables in the A.M.A., Guides is of diminished probative value.14 It is well
established that carpal tunnel impairments are determined under Table 15-23, as noted by
Dr. Slutsky. Dr. Lippman did not discuss the application of this table or other provisions of the
sixth edition of the A.M.A., Guides.
On appeal, appellant stated that she still had pain and referred to Dr. Lippman’s report.
As noted, however, Dr. Lippman did not provide a reasoned medical opinion sufficient to
establish an increase in impairment to either arm.
Appellant may request at any time an increased schedule award based on new medical
evidence showing a progression of an employment-related condition resulting in an increased
permanent impairment.
CONCLUSION
The Board finds that appellant has not established more than 23 percent right arm or 10
percent left arm permanent impairment.

13

Id.

14

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

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 26, 2012 is affirmed.
Issued: February 4, 2013
Washington, DC

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

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

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

5