United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Alpharetta, GA, Employer
)
___________________________________________ )
N.G., Appellant

Docket No. 07-1809
Issued: June 4, 2008

Appearances:
Edward M. Fitts, Esq., for the appellant
Office of Solicitor, for the Director

Case Submitted on the Record

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

JURISDICTION
On June 27, 2007 appellant filed a timely appeal of a decision of the Office of Workers’
Compensation Programs’ hearing representative dated March 23, 2007, which affirmed the
termination of his compensation benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the appeal.
ISSUES
The issues on appeal are: (1) whether the Office properly terminated appellant’s
compensation benefits effective August 16, 2006; and (2) whether appellant met his burden of
proof to establish that he had any disability after August 16, 2006 causally related to his
August 23, 2004 employment injury.
FACTUAL HISTORY
On August 23, 2004 appellant, then a 45-year-old part-time flexible rural carrier,
sustained injury when a truck ran a red light and hit his motor vehicle on the left side. He
became dizzy and felt his neck stiffen. He stopped work on August 23, 2004. On September 21,

2004 his treating physician, Dr. Howard Berkowitz, a Board-certified orthopedic surgeon, opined
that appellant had headaches, dizziness and visual blurring. He diagnosed cervical strain and
postconcussion syndrome with headaches and recommended a neurological evaluation. The
Office accepted appellant’s claim for a cervical strain and he was placed on the periodic rolls.1
An October 7, 2004 cervical magnetic resonance imaging (MRI) scan read by Dr. Hugo
Falcon, a Board-certified diagnostic radiologist, revealed a left-sided disc spur complex with
cord compression at C3-4 and right paracentral disc spur complex with cord compression at
C6-7. October 25, 2004 electrodiagnostic studies read by Dr. Sharon L. Thompson, a
radiologist, revealed probable bilateral C6, 7, 8 polyradiculopathy and right median entrapment
neuropathy.
Appellant received treatment from Dr. Walter Edwards, a Board-certified orthopedic
surgeon. In a May 16, 2005 report, Dr. Edwards noted appellant’s history of injury and
diagnosed a whiplash injury to the cervical spine. On June 24, 2005 Dr. Edwards noted that
appellant presented with cervical radiculopathy and pain in the right arm, greater than the left,
and opined that he would probably require surgery in view of the positive MRI scan findings. A
June 28, 2005 MRI scan read by Dr. Michael I. Chaliff, a Board-certified diagnostic radiologist,
revealed a small disc herniation at C3-4, C4-5 centrally and a small disc herniation at C6-7. On
June 29, 2005 Dr. Edwards noted that, despite three epidural injections, appellant’s neck
continued to be bothersome. Appellant’s disc herniation at C6-7 would eventually require
surgery.2 On August 29, 2005 he indicated that appellant had two epidural steroid injections
which were unsuccessful and opined that appellant was unlikely to improve without surgery. He
found that appellant remained totally disabled due to his neck injury.
By letter dated November 10, 2005, the Office requested additional evidence from
Dr. Edwards regarding the need for surgery, especially in light of appellant’s preexisting cervical
condition. The Office informed appellant’s physician that no cervical degenerative disc disease
or herniated disc had been accepted as employment related.
In a November 11, 2005 report, Dr. Edwards opined that he was “greatly surprised by
[the Office’s] interpretation of the medical records.” He noted that the Office had diagnosed
appellant as having a cervical strain, when the medical records indicated that he had a herniated
cervical disc. Dr. Edwards indicated that a cervical strain would not be visible on the MRI scan
whereas a ruptured disc would be visible.
On February 28, 2006 the Office referred appellant to Dr. Harold H. Alexander, a Boardcertified orthopedic surgeon, for a second opinion examination. In a March 13, 2006 report,
Dr. Alexander noted appellant’s history of injury and treatment and conducted an examination.
He determined that appellant’s subjective complaints were out of proportion to the objective
findings. Dr. Alexander opined that appellant’s cervical strain was related to the accepted injury,
but it was unclear whether his continuing symptoms were related to the injury. He diagnosed
1

The record reflects that appellant has preexisting cervical degenerative changes.

2

Dr. Edwards also referred appellant to Dr. Charles A. MacNeill, a Board-certified pain management specialist,
who provided a July 14, 2005 report, noting appellant’s history and diagnosing cervical radiculopathy.

2

cervical strain and chronic degenerative disc disease of the cervical spine and recommended a
functional capacity evaluation (FCE).3 In an April 19, 2006 report, Dr. Alexander advised the
Office that he had reviewed the FCE results. He found that appellant could sit four hours daily,
stand one hour daily and walk one hour daily. Dr. Alexander indicated that appellant could work
in a sedentary capacity. He completed a work capacity evaluation report on May 1, 2006 and
opined that appellant had reached maximum medical improvement. Dr. Alexander indicated that
appellant could return to work for eight hours per day and prescribed restrictions which included
sitting, reaching, reaching above the shoulder for four hours per day; walking, standing, pushing,
pulling or lifting of no more than 10 pounds for one hour per day; and operating a motor vehicle
for no more than one to two hours per day.
By letter dated May 10, 2006, the Office requested clarification from Dr. Alexander. In a
May 22, 2006 report, Dr. Alexander opined that the cervical strain from appellant’s August 23,
2004 work injury had resolved. He opined that appellant’s present symptoms were the result of
his preexisting cervical degenerative disc disease, which was not work related. Dr. Alexander
advised that it would be unusual for a chronic cervical strain to continue for this period of time.
He indicated that appellant’s present neck symptoms were related to his preexisting condition.
Furthermore, Dr. Alexander opined that he did not believe that the work injury worsened the
preexisting condition.
In a May 24, 2006 report, Dr. Edwards noted that appellant presented with blurred vision,
vertigo, neck pain in the right shoulder and numbness in the right arm and hand, back pain
radiating into the right leg and foot with pain and numbness. He indicated that he was unaware
of appellant’s current status and recommended a second opinion.
On July 10, 2006 the Office issued a notice of proposed termination of compensation. It
found that the weight of the medical evidence was represented by the report of Dr. Alexander
and established that the residuals of the work injury of August 23, 2004 had ceased.
On July 31, 2006 appellant’s representative contended that appellant had been examined
on August 20, 2004, three days prior to his work-related injury. The examination noted that his
neck was supple, with no nodes, extremities or abnormalities. Appellant alleged that he did not
have any of the diagnosed disc herniations prior to his work injury. He submitted a copy of the
August 20, 2004 report, from Dr. Martin A. Dixon, a Board-certified family practitioner and an
osteopath. Dr. Dixon noted that appellant was in for his physical and indicated that he had a
history of tobacco use and rectal bleeding.
By decision dated August 16, 2006, the Office terminated appellant’s compensation
benefits effective that date. The Office found that the weight of the medical evidence was
represented by Dr. Alexander and supported that appellant had no further disability or need for
medical treatment causally related to the injury on August 23, 2004.
By letters dated August 29, 2006, appellant’s representative requested a hearing which
was held on January 24, 2007. The Office received additional evidence including copies of
reports previously submitted. In an October 23, 2006 report, Dr. Edwards opined that appellant’s
3

The record reflects that this was performed on April 17, 2006.

3

“problems have resulted from the accident that I previously saw him for on May 16, 2005.
Apparently, appellant suffered a motor vehicle accident on August 23, 2004 as a postal carrier
and had a severe motor vehicle accident with neck and back injuries at that time.” Dr. Edwards
recommended additional testing such as a bone scan and repeat MRI scan to see if there was
further deterioration of the disc injured in the accident.
In a January 8, 2007 report, Dr. Howard I. Levy, a Board-certified orthopedic surgeon,
diagnosed cervical radiculopathy and recommended a root block at C7. In a January 17, 2007
operative report, he noted that appellant underwent a right C7 cervical root sleeve injection for
cervical radiculopathy. In a February 12, 2007 report, Dr. Levy opined that he “did not
understand why appellant was released from his workers’ compensation and not given anymore
benefits.” He advised that, “if the accident caused [appellant] to have his symptoms then he
certainly should have the benefits and it would appear that certainly is the case; however, I have
no specific evidence to show for that.” Dr. Levy recommended a FCE to determine appellant’s
capacity for work.
By decision dated March 23, 2007, the Office hearing representative affirmed the
Office’s August 16, 2006 decision.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.4 Having determined that, an employee has a disability
causally related to his or her federal employment, the Office may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.5
Section 8123(a) of the Federal Employees’ Compensation Act provides in pertinent part:
If there is disagreement between the physician making the examination for the United States and
the physician of the employee, the Secretary shall appoint a third physician who shall make an
examination.6 When there are opposing reports of virtually equal weight and rationale, the case
must be referred to an impartial medical specialist, pursuant to section 8123(a) of the Act, to
resolve the conflict in the medical evidence.7
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for cervical strain. On August 16, 2006 the Office
terminated appellant’s compensation benefits, effective that date, finding that the weight of the
medical opinion evidence rested with Dr. Alexander, the second opinion physician, who opined
that appellant’s accepted conditions had resolved.
4

Curtis Hall, 45 ECAB 316 (1994).

5

Jason C. Armstrong, 40 ECAB 907 (1989).

6

5 U.S.C. § 8123(a).

7

William C. Bush, 40 ECAB 1064, 1075 (1989).

4

However, the Board notes that, at the time of the Office’s March 23, 2007 termination
decision, there was a conflict in the medical evidence between, the second opinion physician,
Dr. Alexander, a Board-certified orthopedic surgeon, who opined that appellant’s August 23,
2004 work injury had resolved, and Dr. Edwards, a Board-certified orthopedic surgeon and
treating physician, who opined that appellant’s condition continued. Both physicians examined
appellant and reviewed multiple medical records in support of their opinions.
Dr. Edwards submitted several reports in which he advised the Office that appellant’s
cervical strain condition continued. In a May 16, 2005 report, he noted appellant’s history of
injury and diagnosed a whiplash injury to the cervical spine culminating in herniated disc. In
subsequent reports Dr. Edwards indicated that appellant’s condition continued, that he remained
disabled and that surgery would be necessary.
In contrast, Dr. Alexander, in his March 13 and April 19, 2006 reports, diagnosed a
resolved cervical strain and chronic degenerative disc disease of the cervical spine. He
recommended an FCE and provided restrictions for returning to work eight hours per day. On
May 22, 2006 Dr. Alexander opined that appellant’s cervical strain had resolved and that his
present symptoms were solely related to his preexisting degenerative disc disease, which was not
work related.
The Board finds that the opinions of Drs. Alexander and Edwards are in conflict as to
whether appellant had any continuing residuals or disability resulting from the accepted injury.
As this conflict existed at the time the Office terminated benefits on August 16, 2006, the Office
did not meet its burden of proof in terminating such benefits. Consequently, the Office’s
termination of benefits must be reversed.8
CONCLUSION
The Board finds that the Office improperly terminated appellant’s compensation benefits
on the grounds that he had no further disability or need for medical benefits due to his
August 23, 2004 work injury.

8

In light of the Board’s finding on the first issue, the second issue is moot.

5

ORDER
IT IS HEREBY ORDERED THAT the March 23, 2007 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: June 4, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.Y., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Port Chester, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-771
Issued: October 15, 2010

Case Submitted on the Record

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

JURISDICTION
On January 27, 2010 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ overpayment decision dated December 23, 2009. Under 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this overpayment decision.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received an
overpayment in the amount of $4,037.85 for the period January 29 through March 14, 2009; and
(2) whether the Office properly found appellant was at fault in creating the overpayment.
FACTUAL HISTORY
Appellant, a 46-year-old mail baggage screener, filed a claim for benefits on February 15,
2006, alleging that he injured his right shoulder on February 14, 2006 when he slipped and fell
while walking on wet stairs. The Office accepted the claim for sprain of the right shoulder, right
upper arm and right rotator cuff.

In a November 9, 2006 letter, the Office advised appellant that he would be paid
temporary total disability compensation, as follows:
“You are expected to return to work (including light-duty or part-time work, if
available) as soon as you are able. Once you return to work, or obtain new
employment, notify this office immediately. Full compensation is payable only
while you are unable to perform the duties of your regular job because of your
accepted employment-related condition. If you receive a compensation check
which includes payment for a period you have worked, return it to us immediately
to prevent an overpayment of compensation.” (Emphasis added.)
On November 16, 2007 appellant filed a claim for recurrence of disability as of
November 6, 2007. The Office accepted his claim for recurrence of disability and accepted the
condition of ruptured right rotator cuff. It commenced appellant’s wage-loss compensation for
temporary total disability and placed him on the periodic rolls.
On January 29, 2009 appellant was released to full duty and returned to work.
On April 24, 2009 the Office issued a preliminary determination that an overpayment had
occurred in the amount of $4,037.85 for the period January 29 through March 14, 2009. It found
that appellant was at fault in creating the overpayment because he knew or should have known
that he was not entitled to receive compensation payments after he returned to work. The Office
calculated the amount of the overpayment by multiplying the amount of his monthly
compensation payment, $2,512.44, by two months which totaled $5,024.88. From which it
subtracted $987.03, representing the 11 days of the first monthly period of overpayment,
January 18 to 28, 2009 when he was not working. This created a total overpayment of
$4,037.85. It informed appellant that, if he disagreed with the decision he could submit evidence
or argument to the Office within 30 days or request a prerecoupment hearing with the Branch of
Hearings and Review.
On May 24, 2009 appellant completed the overpayment questionnaire and requested a
prerecoupment hearing, which was held on September 9, 2009. He submitted documentation
regarding his financial status and stated at the hearing that he accepted the checks because he
believed he was entitled to them and because he needed money due to a dire financial situation.
In a decision dated December 23, 2009, an Office hearing representative finalized the
overpayment of $4,037.85. The Office found that appellant knew or should have been aware that
he accepted incorrect compensation after he returned to work on January 29, 2009.
LEGAL PRECEDENT -- ISSUE 1
Compensation for total disability under the Federal Employees’ Compensation Act is
payable when the employee starts to lose pay.1 Compensation for wage loss due to disability is

1

20 C.F.R. § 10.401(a) (2003).

2

available only for any periods during which an employee’s work-related medical condition
prevents him from earning the wages earned before the work-related injury.2
ANALYSIS -- ISSUE 1
The Board finds that the Office properly determined that appellant received an
overpayment of compensation in the amount of $4,037.85 for the period January 29 through
March 14, 2009. The record shows that appellant received an overpayment during the period in
question because he received wage loss for temporary total disability after returning to full-time
work on January 29, 2009, at full salary. The Office calculated the $4,037.85 overpayment by
adding the amount of temporary total disability compensation appellant received in two checks
for the period January 18 through March 14, 2009, which totaled $5,024.88, covering two
payments of $2,512.44 each for January 18 through February 14, 2009 and February 15 through
March 14, 2009, and then subtracting the prorated amount for January 18 through 28, 2009,
$987.03.3 The Board finds that appellant received an overpayment of compensation in the
amount of $4,037.85 during that period.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act4 provides that an overpayment must be recovered unless
“incorrect payment has been made to an individual who is without fault and when adjustment or
recovery would defeat the purpose of the Act or would be against equity and good conscience.”
No waiver of an overpayment is possible if the claimant is not “without fault” in helping to
create the overpayment.5
In determining whether an individual is with fault, section 10.433(a) of the Office’s
regulations provide in relevant part:
“A recipient 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 the individual
knew or should have known to be incorrect; or
(2) Failed to provide information which the individual knew or should
have known to be material; or

2

Id. at § 500(a) (2003).

3

The Office divided $2,512.44 by 28 days to calculate that appellant was paid at a rate of $89.73 per day. It then
multiplied $89.73 times 11, the number of days he did not work from January 18, 2009, the beginning of the pay
period, through January 29, 2009, for a total of $987.03. The Office stated that the difference between the net
compensation paid of $5,024.88 and the compensation that claimant was entitled to, $987.03, was $4,037.85.
4

5 U.S.C. § 8129(a)-(b).

5

Bonnye Mathews, 45 ECAB 657 (1994).

3

(3) Accepted a payment which he or she knew or should have known to be
incorrect.6
ANALYSIS -- ISSUE 2
The Office applied the third standard in determining that appellant was at fault in creating
the overpayment. It found that appellant accepted a payment which he knew or should have
known was incorrect. Even if the overpayment resulted from negligence on the part of the
Office, this does not excuse the employee from accepting payment which he knew or should
have known he was not entitled.7 Appellant was informed in the November 9, 2006 letter that he
was required to notify the Office as soon as he returned to work and to return any payment of
compensation; otherwise an overpayment of compensation would be created. He returned to
work on January 29, 2009 and received a check dated February 16, 2009 for compensation for
the period January 20 through February 16, 2009. Appellant again received a compensation
payment on March 15, 2009 for the period February 17 through March 15, 2009. He did not
return any compensation received after his return to work, even though he knew or should have
known that an overpayment would be created if he accepted compensation benefits after his
return to work. At the prerecoupment hearing, appellant acknowledged that he kept the
payments due to his financial circumstances.
The Office includes on each periodic check a clear indication of the period for which
payment is being made. By doing this, it puts the recipient on notice that a payment was made
and the amount of payment.8 This is evidence that should have put appellant on notice that,
when he accepted the compensation for the period in question, he was not entitled to receive
wage-loss compensation for total disability for periods when he worked and received full salary.
Appellant was at fault under the third standard as noted. The overpayment may not be
considered for waiver. The Board will affirm the December 23, 2009 Office decision.
CONCLUSION
The Board finds that the Office properly determined that appellant received an
overpayment of compensation in the amount of $4,037.85 from January 29 through
March 14, 2009. The Board finds that the Office properly found appellant was at fault in the
creation of the overpayment.

6

20 C.F.R. § 10.433(a).

7

See Russell E. Wageneck, 46 ECAB 653 (1995).

8

20 C.F.R. § 10.430.

4

ORDER
IT IS HEREBY ORDERED THAT the December 23, 2009 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: October 15, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL LAW ENFORCEMENT TRAINING
CENTER, Glynco, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-367
Issued: July 14, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 8, 2014 appellant filed a timely appeal from a September 29, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant sustained additional neck and cervical conditions as a
consequence of his accepted June 1, 2012 injury.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted additional evidence on appeal. However, the Board cannot consider this evidence,
however, as its review of the case is limited to the evidence of record which was before OWCP at the time of its
final decision. 20 C.F.R. § 501.2(c); see Steven S. Saleh, 55 ECAB 169 (2003).

FACTUAL HISTORY
On June 1, 2012 appellant, then a 56-year-old senior instructor, was injured in his
automobile when retractable security bollards (safety guards), at his duty station, unexpectedly
raised under his vehicle as he was driving over them. His vehicle was lifted approximately four
feet off the ground. Appellant noted having head, neck, spine, and breast bone pain. OWCP
accepted the claim for lumbar sprain.
In a June 1, 2012 emergency room report, Dr. Jennifer Adair, Board-certified in
emergency medicine, noted that appellant presented following a motor vehicle accident.
Appellant reported pain between his scapulae. Dr. Adair examined appellant and noted that the
neck had no midline tenderness although he was tender just left of the midline on the posterior
neck. She found that he was tender over the mid thoracic spine and adjacent paraspinal muscles.
Dr. Adair diagnosed a “muscle strain,” a pulled muscle, chest wall pain and headache. A June 1,
2012 thoracic spine x-ray demonstrated degenerative changes of the thoracic spine with no
fracture. A June 1, 2012 computerized tomography (CT) scan of the head revealed no acute
intracranial process.
In a June 7, 2012 report, Dr. James McGrory, a Board-certified orthopedic surgeon, noted
that appellant was driving his vehicle when “suddenly security bollards came up from the ground
and stopped his car. He was jerked really hard.” Dr. McGrory reported that, on the prior day,
appellant noted that he felt his back pop and then suddenly felt better. He diagnosed lumbar
sprain and strain and lumbago and muscle strain. Dr. McGrory noted appellant’s had a prior
history of shoulder and upper arm strains, including a complete rupture of a rotator cuff on
January 7, 2009. OWCP also received several physical therapy reports.
In a December 6, 2012 report, Dr. Douglas Pahl, a Board-certified orthopedic surgeon
and associate of Dr. McGrory, noted appellant’s history of injury and treatment which included
“pain since June when a high-powered and high velocity barrier device deployed inadvertently
by apparently a lightning strike and destroyed his vehicle while he was driving [at] a relatively
slow rate of speed.” Since then appellant described interscapular pain, some neck pain and left
arm pain radiating to the ulnar digits. Dr. Pahl stated that appellant did not currently have a
lumbar strain and he did not describe any history of lumbar strain. He examined appellant and
found that the neck was supple with full range of motion. X-rays of the thoracic spine revealed a
significantly collapsed disc at C5-6 which possibly correlated with the radiating pain symptoms.
Dr. Pahl found tenderness of the left parathoracic spine and recommended a magnetic resonance
imaging (MRI) scan. He diagnosed thoracic spine pain, cervical spondylosis without
myelopathy, cervicalgia, brachial neuritis or radiculitis, and thoracic spondylosis without
myelopathy. Dr. Pahl advised that appellant’s symptoms correlated with the accident and with
possible cervical pathology.
In a letter dated December 31, 2012, appellant requested that OWCP approve his thoracic
and cervical conditions and an MRI scan of the cervical area.
A January 25, 2013 thoracic spine MRI scan, read by Dr. Hyun M. Song, a Boardcertified diagnostic radiologist, revealed T10-11 prominent ligamentum flavum hypertrophy and
thickening on the left, abutting the left dorsal aspect of the cord; T9-10 central mixed spondylotic

2

protrusion with effacement of the ventral thecal sac; T5-6 small left parasagittal protrusion with
effacement of the left ventral thecal sac; and lower cervical spondylosis with evidence of
impingement of the ventral aspect of the cervical cord.
In a letter dated January 28, 2013, OWCP explained that it could not authorize the
thoracic spine MRI scan without medical reasoning from his physician explaining how his
current condition was related to the June 1, 2012 incident.
In a letter dated February 15, 2013, appellant repeated his request to authorize the
cervical MRI scan and reiterated that his symptoms were from his accident. In a letter dated
February 20, 2013, he explained that OWCP’s acceptance or lumbar strain was an inadvertent
oversight as he had not experienced any lumbar symptoms at the time of his original injury.
Appellant noted that on his claim form he had indicated only head, neck and spine pain. He also
noted that he received physical therapy from June through August 2012, which targeted his
injured areas of the head, neck, and thoracic spine. Appellant argued that his physician, Dr. Pahl
now provided a reasoned opinion to allow for the correct diagnoses to include his neck and
thoracic spine.
In a February 21, 2013 report, Dr. Pahl noted appellant’s history of injury and treatment.
He advised that appellant was still having problems with the arms and the upper thoracic spine
essentially stemming from the neck and advised that this “correlated with the work-related
event.” Dr. Pahl opined that he was not sure why the cervical spine MRI scan had not been
authorized as it correlated with the work-related event and the MRI scan of the thoracic spine
revealed that appellant’s symptoms were worsening, including arm numbness. He explained that
the imaging showed severe stenosis at C5-6 and C6-7, which correlated with the symptoms he
was experiencing into the arms. Dr. Pahl diagnosed: pain in the thoracic spine; cervical
spondylosis without myelopathy; cervicalgia; brachial neuritis or radiculitis; thoracic spondylosis
without myelopathy; and spinal stenosis in the cervical region. He also again recommended
approval of the cervical MRI scan.
In letters dated March 14 and 22, 2013, OWCP requested additional information related
to appellant’s request to expand his claim. It informed him of the type of evidence needed to
support his claim and requested that he submit such evidence within 30 days.
In a March 27, 2013 report, Dr. Pahl opined that he believed the work-related event was
“causally related to the C-spine MRI scan findings revealing severe cervical spondylosis and
stenosis recently visible on the thoracic spine MRI [scan].”
By decision dated June 18, 2013, OWCP denied appellant’s request to expand his claim.
It found that the attending physician had not provided any rationale or reasoning to establish
additional conditions caused or aggravated by the June 1, 2012 incident.
On July 1, 2013 appellant requested a hearing. This was later changed to a request for a
telephone hearing which was held on February 24, 2014.
An August 2, 2013 MRI scan of the cervical spine read by Dr. Matthew P. Chanin, a
Board-certified diagnostic radiologist, revealed severe central canal stenosis, cerebrospinal fluid
column effacement; moderate foraminal stenosis due to disc osteophyte, uncovertebral and facet
3

hypertrophy, central herniated nucleus pulposus (HNP) at C6-7, with no cord signal abnormality;
severe central canal stenosis due to disc osteophyte; small superimposed disc protrusion without
cord signal abnormality at C5-6; moderate left and mild right neural foraminal stenosis due to
uncovertebral and facet hypertrophy at C4-5 accompanied by moderate central canal stenosis;
and mild-to-moderate central canal stenosis due to disc osteophyte complex formation,
accompanied by mild bilateral neural foraminal stenosis at C3-4.
On August 7, 2013 appellant requested that the claim be expanded. He included a new
report from Dr. Pahl dated August 2, 2013. Dr. Pahl noted appellant’s history, which included
significant spinal cord stenosis and impingement at C5-6 and C6-7, and believed those factors
correlated with his symptoms. He noted that appellant did not have any specific pain before the
work incident in his neck or upper thoracic area, which began after the accident. Dr. Pahl
advised that
“This is clearly related. These are severe disc herniations which are fairly easily
correlated with this event. I am unsure why there has been an actual question
about this particular event and the location of pain. He never really had any
lumbar spine pain although he was initially sent for an evaluation of the lumbar
spine. I have never found any pathology in the lumbar spine and found that it was
obvious at the cervical spine and mid thoracic levels. The disc herniations can be
easily correlated with the high-level injury imported to his neck with the violent
mechanism of injury.”
Dr. Pahl recommended surgery. He diagnosed brachial neuritis or radiculitis; cervical spinal
stenosis; cervical spondylosis without myelopathy; thoracic spondylosis without myelopathy;
and cervicalgia.
Appellant continued to submit additional medical evidence. In an August 13, 2013
report, Dr. Pahl advised that appellant denied any prior neck or thoracic spine complaints prior to
the work-related event. He found that the mechanism of injury correlated with the current
history, examination and radiographic findings, “more likely than not.” Dr. Pahl recommended a
cervical decompression and fusion with instrumentation at C5-6, C6-7 to decompress the spinal
cord. He recommended no activity other than answering telephones and that appellant undergo
surgery as soon as possible. Dr. Pahl advised that appellant was dangerously at risk for
quadriplegia. On October 9, 2013 he performed an anterior cervical discectomy with
decompression and fusion, anterior interbody device placement augmented with cancellous
allograft plugs, C5-6 and C6-7, anterior plate stabilization and instrumentation C5 to C7 and
spinal cord monitoring. Dr. Pahl continued to treat appellant. OWCP also received x-ray
photographs of appellant’s cervical region.
In a letter dated February 25, 2014, appellant reiterated his request to expand his claim.
He noted that he had initially complained of head, neck and back pain. Appellant also noted that
x-rays were taken of his thoracic spine because “that was where the majority of the pain was.”
He also indicated that from the end of June to August 2012, he received 22 physical therapy
treatments “targeting his thoracic area because that was where the pain was.” Appellant also
explained that he requested to see Dr. Pahl, a spine specialist, but he was unavailable for six

4

weeks, and he did not receive authorization to see him from OWCP until November 5, 2012.3
He noted that it was almost four months before he received approval and that was why his first
appointment was scheduled for December 6, 2012. Appellant argued that OWCP’s delay in
authorizing Dr. Pahl’s treatment was the reason for not obtaining treatment sooner for his
cervical and thoracic condition.
By decision dated April 22, 2014, an OWCP hearing representative affirmed the June 18,
2013 decision. She found that there was no explanation as to what occurred during the sixmonth time frame when appellant was not seen by a physician. The hearing representative found
that it was unclear how a severe neck injury could flare up six months after the motor vehicle
incident.
On July 30, 2014 OWCP received appellant’s request for reconsideration. He submitted
photographs of his automobile after the June 1, 2012 accident.
In a June 17, 2014 report, Dr. Pahl explained that appellant had no prior neck pain and
was involved in a severe and significant collision with his motor vehicle and a barricade that
“deployed directly beneath his vehicle he was driving as he passed through a security gate. This
forcibly advanced his skull into the metal headliner of his vehicle causing a significant axial load
injury to his neck with a hyperflexion moment.” Dr. Pahl opined:
“[Appellant’s] subsequent studies to include a thoracic AND cervical MRI
revealed OBVIOUS cervical disc herniations CAUSING spinal cord stenosis and
impingement which were recommended for surgery. In my expert opinion, the
stenosis, disc herniations, spinal cord impingement were directly and causally
related to the incident described AND the surgery outlined/ recommended and
performed was specifically to treat these injuries AND medically/surgically
indicated.” (Emphasis in the original.)
Dr. Pahl noted that he identified a small amount of preexisting degenerative disc disease,
but it was extremely slight and appellant was asymptomatic. He stated that he could not be more
clear as to the cause of these cervical conditions.
By decision dated September 29, 2014, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
The general rule respecting consequential injuries is that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural occurrence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause, which is attributable to the employee’s own intentional conduct.4
The subsequent injury is compensable if it is the direct and natural result of a compensable
3

The record indicates that, on June 11, 2012, appellant requested that OWCP authorize his treatment by Dr. Pahl.
On November 5, 2012 OWCP authorized Dr. Pahl to treat appellant.
4

Albert F. Ranieri, 55 ECAB 598 (2004).

5

primary injury.5 With respect to consequential injuries, the Board has stated that, where an
injury is sustained as a consequence of an impairment residual to an employment injury, the new
or second injury, even though nonemployment related, is deemed, because of the chain of
causation, to arise out of and in the course of employment and is compensable.6 A claimant
bears the burden of proof to establish the claim for consequential injury.7
Causal relationship is a medical issue,8 and the medical evidence generally required to
establish causal relationship is rationale medical opinion evidence. The opinion of the physician
must be based on a complete factual and medical history of the claimant,9 must be one of
reasonable certainty,10 and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the established incident or factor of
employment.11
ANALYSIS
In this case, OWCP accepted appellant’s claim for sprain of the back, lumbar region.
Appellant asked that his claim be expanded to include a thoracic and cervical condition.
However, OWCP denied his request to expand his claim for a consequential injury.
The Board finds that this case is not in posture for decision.
The evidence in this case supports that on the date of the incident, appellant had
complaints of head, neck, spine, and breast bone pain after the vehicle in which he was driving
was lifted three to four feet in the air when it was struck by retractable security bollards.
Furthermore, the emergency room notes from Dr. Adair on June 1, 2012 contain findings which
include that the neck was tender just left of the midline on the posterior neck. She found that the
back was tender over the mid thoracic spine and adjacent paraspinal muscles. Dr. Adair
diagnosed a “muscle strain,” a pulled muscle, chest wall pain and headache. Appellant explained
that he received physical therapy from June to August 2012, which focused on his thoracic area
and also explained that he did not see Dr. Pahl earlier because he did not receive authorization
from OWCP until four months after the injury.
The evidence offered in support of expansion of appellant’s claim includes several
reports from Dr. Pahl. In his initial December 6, 2012 report, Dr. Pahl noted appellant’s history
of injury and explained that appellant described interscapular pain, neck pain and left arm pain
5

Id.; Carlos A. Marrero, 50 ECAB 117 (1998); A. Larson, The Law of Workers’ Compensation § 10.01 (2005).

6

Kathy A. Kelley, 55 ECAB 206 (2004); see also C.S., Docket No. 11-1875 (issued August 27, 2012).

7

S.P., Docket No. 14-900 (issued August 8, 2014).

8

Mary J. Briggs, 37 ECAB 578 (1986).

9

William Nimitz, Jr., 30 ECAB 567 (1979).

10

See Morris Scanlon, 11 ECAB 384, 385 (1960).

11

See William Enright, 31 ECAB 426, 430 (1980).

6

radiating to the ulnar digits. He believed that the lumbar condition had been inadvertently
diagnosed. Dr. Pahl noted that thoracic spine x-rays showed a significantly collapsed disc at C56 which possibly correlated with the neck and radiating arm symptoms. He opined that
appellant’s symptoms correlated with the accident. Dr. Pahl repeated his opinion in his
February 21, 2013 report and explained that the thoracic spine MRI scan indicated severe
stenosis at C5-6 and C6-7 which correlated with appellant’s symptoms. In an August 2, 2013
report, he indicated that appellant did not have any specific pain in his neck or upper thoracic
area before the work injury and opined that “[t]his is clearly related. These are severe disc
herniations which are fairly easily correlated with this event.” Dr. Pahl explained that the “disc
herniations could be easily correlated with the high-level injury imported to his neck with the
violent mechanism of injury.” In his August 13, 2013 report, he indicated that the mechanism of
injury correlated with the current history, examination and radiographic findings, “more likely
than not.” Dr. Pahl recommended a cervical decompression and fusion at C5-6, C6-7. In his
June 17, 2014 report, he explained that appellant did not have neck pain prior to the accident and
that he was involved in a severe and significant motor vehicle incident which “forcibly advanced
his skull into the metal headliner of his vehicle causing a significant axial load injury to his neck
with a hyperflexion moment.” Dr. Pahl opined: “[Appellant’s subsequent studies to include a
thoracic AND cervical MRI scan revealed OBVIOUS cervical disc herniations CAUSING spinal
cord stenosis and impingement which were recommended for surgery.” He advised that “the
stenosis, disc herniations, spinal cord impingement were directly and causally related to the
incident described AND the surgery outlined/ recommended and performed was specifically to
treat these injuries AND medically/surgically indicated.” (Emphasis in the original.) Dr. Pahl
noted that he identified a small amount of preexisting degenerative disc disease but extremely
slight and asymptomatic.
Proceedings under FECA are not adversarial in nature nor is OWCP a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence to see that justice is done.12 While
Dr. Pahl’s reports do not contain sufficient rationale to discharge appellant’s burden of proving
by the weight of the reliable, substantial and probative evidence that his cervical and thoracic
condition was caused or aggravated by factors of his employment, they reflect an accurate
history, detailed diagnostic findings and are supported by sufficient rationale to require further
development of the case record by OWCP.13
On remand, OWCP should refer appellant, the case record, and a statement of accepted
facts to an appropriate Board-certified specialist for an evaluation and a rationalized medical
opinion regarding the cause of appellant’s condition. After such further development of the case
record as it deems necessary, a de novo decision shall be issued.
Appellant made several arguments on appeal to support his claim. However, in light of
the Board’s finding, it is premature to address them at this juncture.

12

William J. Cantrell, 34 ECAB 1223 (1983).

13

See John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

7

CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the September 29, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for action consistent with this
decision.
Issued: July 14, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF COMMERCE, CENSUS
)
BUREAU PARTNERSHIP, Dallas, TX, Employer )
__________________________________________ )
R.B., Appellant

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

Docket No. 10-2195
Issued: August 23, 2011

Case Submitted on the Record

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

JURISDICTION
On August 24, 2010 appellant filed a timely appeal of the July 29, 2010 overpayment
decision of the Office of Workers’ Compensation Programs (OWCP). 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 overpayment case.
ISSUES
The issues are: (1) whether OWCP properly found that appellant received an
overpayment of compensation in the amount of $1,563.91 from August 25 through
September 12, 2003 and March 31 through May 27, 2005 after she returned to work; and
(2) whether OWCP properly found that appellant was at fault in the creation of the $1,563.91
overpayment and, therefore, ineligible for waiver of the recovery.
On appeal, appellant contends that interest should not accrue on her $1,563.91
overpayment until she has received due process.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on July 6, 2000 appellant, then a 46-year-old temporary community
partnership specialist, sustained cervicalgia and cervical, thoracic and sacrum strains when she
fell while working at the employing establishment.2 Appellant was placed on the periodic rolls
for temporary total disability compensation on December 31, 2000. OWCP required her to
complete CA-1032 forms which directed her to report any earnings from employment or selfemployment while in the receipt of OWCP compensation benefits.
On September 9, 2004 appellant completed a Form CA-1032 indicating that she had not
worked in the past 15 months. She completed another Form CA-1032 on September 7, 2005
stating that she had not worked during the prior 15 months.
In a July 5, 2006 decision, OWCP terminated appellant’s compensation benefits effective
that date, finding that she no longer had any residuals or disability causally related to her July 6,
2000 employment-related injuries.
In a November 4, 2008 investigative report, the Office of the Inspector General for the
employing establishment presented evidence which showed that appellant worked as a clinical
pastor at Parkland Health and Hospital Systems from August 25 through September 12, 2003.
Appellant was paid $1,218.00 at an hourly rate of $10.15. She worked as a full-time resident
chaplain at Huguley Memorial Medical Center from March 31 through May 27, 2005. Appellant
was paid a $900.00 stipend every two weeks, totaling $4,050.00. In a July 31, 2008 interview
with a special agent, she acknowledged her occupation as a chaplain, but stated that she did not
receive a salary in the position as she performed volunteer work. Because appellant received a
stipend and considered her work volunteer, she did not report her earnings to OWCP. She
defined work as someone who received a good pay check for 40 hours of work a week.
Appellant did not consider her work as volunteer in the appropriate section on the CA-1032
forms she completed because she likely used a previous Form CA-1032 as an example. She did
not think the forms were important.
On February 9, 2010 OWCP issued a preliminary determination of overpayment. It
found that appellant received an overpayment in the amount of $1,563.91 because she worked as
a clinical pastor and resident chaplain from August 25 through September 12, 2003 and
March 31 through May 27, 2005 while receiving temporary total disability compensation.
OWCP noted that she received compensation in the amount of $1,977.15 for the period
August 25 to September 12, 2003 and $5,317.44 for the period March 31 to May 27, 2005 which
totaled $7,294.59. Appellant was only entitled to $5,730.68 in compensation for the stated
periods based on a wage-earning capacity determination, creating a $1,563.91 overpayment.
OWCP found that she was at fault in the creation of the overpayment because she was aware or
should have reasonably been aware that she was not entitled to wage-loss compensation for total
disability while working. Appellant was afforded 30 days to request a telephone conference,
prerecoupment hearing or a final decision based on the record. OWCP also requested financial
information and any additional arguments supporting waiver of the overpayment.
2

Appellant stopped work on July 11, 2000.

2

On February 23, 2010 appellant requested a prerecoupment hearing and waiver of the
$1,563.91 overpayment. She disagreed with the amount of the overpayment and finding of fault.
Appellant contended that she donated the wage stipend she received while working at Parkland
Hospital to the hospital’s fund.
In a March 10, 2010 decision, OWCP finalized the overpayment determination in the
amount of $1,563.91. It found that appellant did not submit any evidence refuting the amount of
the overpayment or finding of fault and directed recovery of the overpayment.
By letter dated April 8, 2010, OWCP vacated its March 10, 2010 decision as appellant
had requested a prerecoupment hearing on February 23, 2010.
During a June 9, 2010 hearing, appellant testified that the earnings she donated to the
Parkland Hospital fund were used to buy flowers for patients and compensate families. She
expressed her inability to repay the overpayment based on her current reduced salary as an
enumerator at the employing establishment. The hearing representative left the record open for
30 days so that appellant could submit financial records documenting her monthly income and
expenses.
In a June 11, 2010 letter, appellant denied receiving a salary in 2003. She reiterated that
the money she received was given to the Parkland Hospital trust fund. Appellant advised the
director of chaplains at the hospital that her services were free. She was not certain as to whether
she worked at the hospital in 2005.
In a July 9, 2010 letter, appellant advised that she had no income as she stopped working
at the employing establishment as of June 2010.
In a July 29, 2010 decision, the hearing representative finalized the $1,563.91
overpayment of compensation, finding that appellant was at fault in creating the overpayment
because she failed to either report her earnings as required on CA-1032 forms or contact OWCP
when she began to receive income, thereby precluding waiver of recovery of the overpayment.
He noted that she did not submit any financial information as requested. Appellant was advised
that interest would immediately begin to accrue on the overpayment.
LEGAL PRECEDENT -- ISSUE 1
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 her duty.3
When an overpayment has been made to an individual because of an error of fact or law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which the individual is entitled.4

3

5 U.S.C. § 8102(a).

4

Id. at § 8129(a).

3

If the claimant has been receiving compensation on the periodic rolls, the claims
examiner should delete the payment record from the periodic rolls as soon as possible. If the
deletion can be made effective with the current roll period, any additional compensation due
should be paid on the daily rolls. Any compensation paid for total wage loss subsequent to the
date of return to work should be declared an overpayment.5
If the claimant is entitled to compensation for partial wage loss after return to work, the
claims examiner should compute entitlement using the Shadrick formula and authorize
compensation on a 28-day payment cycle. The claims examiner should make every effort to
avoid interruption of income to the claimant.6 Earnings of a sporadic or intermittent nature
which do not fairly and reasonably represent the claimant’s loss in wage-earning capacity
(LWEC) should be deducted from continuing compensation payments using the Shadrick
formula (past earnings must be declared an overpayment). Sporadic or intermittent earnings
should not be used as the basis for an LWEC determination but they should be used to help
establish the kind of work the claimant can perform.7
ANALYSIS -- ISSUE 1
The record establishes that an overpayment was created as appellant was employed from
August 25 through September 12, 2003 at Parkland Hospital as a clinical pastor and from
March 31 through May 27, 2005 at Huguley Memorial Medical Center as a resident chaplain.
Appellant remained on the periodic rolls and received wage-loss compensation for total
disability. OWCP determined that she received $7,294.59 in compensation for total disability
during the stated periods. The Board finds that as appellant earnings from employment as a
chaplain, she should not have received compensation for total disability. Utilizing the Shadrick
formula,8 OWCP determined that she should have received $5,730.68 based on its wage-earning
capacity determination. OWCP subtracted this amount from the $7,294.59 that appellant
received for total disability and found that she received an overpayment of $1,563.91. The
Board finds that her receipt of compensation created a $1,563.91 overpayment in compensation.
Appellant contended that she performed volunteer work at Parkland Hospital and
Huguley Memorial Medical Center, noting that she donated her earnings from Parkland Hospital
to its fund for patients and their families. She also informed its chaplain director of her volunteer
work. As stated, the record established that appellant received income from employment for her
ministerial duties at both hospitals. The fact that she donated her earnings to Parkland Hospital

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.814.7(b)(1) (July 1997).

6

Id. at Chapter 2.814.7(b)(2) (December 1995). See Albert C. Shadrick, 5 ECAB 376 (1953).

7

FECA Procedure Manual, supra note 5 at Chapter 2.814.7(d)(3) ( June 1996).

8

Supra note 6.

4

and informed management of her volunteer status does not render the work she performed as
volunteer, nor does it obviate the creation of the overpayment.9
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA10 provides that “[a]djustment or recovery by the United States
may not be made when incorrect payment has been made to an individual who is without fault
and when adjustment or recovery would defeat the purpose of [FECA] or would be against
equity and good conscience.” Section 10.433 of OWCP’s implementing regulations11 provide
that, in determining whether a claimant is at fault, OWCP will consider all pertinent
circumstances. An individual is with fault in the creation of an overpayment who:
“(1) Made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; or
“(2) Failed to provide information which he or she knew or should have known to
be material; or
“(3) Accepted a payment which he or she knew or should have known to be
incorrect.”
Whether or not OWCP determines that an individual was at fault with respect to the
creation of an overpayment 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 overpaid.12
ANALYSIS -- ISSUE 2
The Board finds that appellant was at fault in the creation of the overpayment because
she failed to provide information about her employment, which she knew or should have known
was material. The CA-1032 forms completed by her on September 9, 2004 and September 7,
2005 specifically advised her to report any employment activity or earnings, including selfemployment, even if the business ran at a loss. Appellant was reasonably aware that her
employment as a clinical pastor and resident chaplain was material information that should be
furnished to OWCP. Her failure to furnish this information created the overpayment of
compensation for the period August 25 through September 12, 2003 and March 31 through
May 27, 2005. The Board finds that OWCP properly determined fault under the second standard
for failing to provide information appellant knew to be material to her receipt of compensation
9

See generally, Sharon M. Powell, Docket No. 00-1130 (issued January 25, 2002), n.22 (where the Board found
that appellant’s decision to donate her commission to her customer’s church did not negate the fact that she had
earnings from her real estate activities).
10

5 U.S.C. § 8129(b).

11

20 C.F.R. § 10.433.

12

Id. at § 10.433(b).

5

benefits. Appellant, therefore, was at fault in the creation of the $1,563.91 overpayment.
Recovery of the overpayment is not subject to waiver.
On appeal, appellant contended that interest should not accrue on her $1,563.91
overpayment until she has received due process. The Board notes that she received due process
as OWCP provided her with a preliminary notice of the overpayment. Further, appellant was
afforded a hearing on the matter prior to the issuance of OWCP’s July 29, 2010 decision
finalizing the overpayment. The Board notes that, with respect to the recovery of the
overpayment in compensation, the Board’s jurisdiction is limited to reviewing those cases where
OWCP seeks recovery from continuing compensation benefits under FECA.13 As appellant is no
longer receiving wage-loss compensation, the Board does not have jurisdiction with respect to
recovery of the overpayment under the Debt Collection Act.14
CONCLUSION
The Board finds that OWCP properly found that appellant received an overpayment of
$1,563.91 from August 25 through September 12, 2003 and March 31 through May 27, 2005
after she returned to work. The Board further finds that OWCP properly found that appellant
was at fault in the creation of the $1,563.91 overpayment and, therefore, ineligible for waiver of
the recovery.

13

Terry A. Keister, 56 ECAB 559 (2005); see also Cheryl Thomas, 55 ECAB 610 (2004).

14

Cheryl Thomas, id.

6

ORDER
IT IS HEREBY ORDERED THAT the July 29, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 23, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lanham, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-1844
Issued: April 18, 2012

Case Submitted on the Record

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

JURISDICTION
On August 9, 2011 appellant filed a timely appeal from a July 15, 2011 merit decision of
the Office of Workers’ Compensation Programs (OWCP) regarding his schedule award claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has more than five percent impairment of the left upper
extremity, for which he received a schedule award.
FACTUAL HISTORY
On January 7, 2008 appellant, then a 44-year-old letter carrier, injured his left shoulder
while lifting and pulling trays of mail from a truck. OWCP accepted the claim for left shoulder

1

5 U.S.C. §§ 8101-8193.

sprain and upper arm, sprain rotor cuff tendinitis, and bursae and tendon left arm. Appellant
returned to work on March 8, 2008 in a light-duty position with work restrictions.
On September 28, 2010 appellant filed a claim for a schedule award. In an October 25,
2010 letter, OWCP advised him of the medical information necessary to establish permanent
impairment.
In a January 28, 2011 report, Dr. John P. Byrne, a Board-certified orthopedic surgeon,
noted appellant’s primary diagnoses as rotator cuff tendinitis with subacromial bursitis,
impingement and acromioclavicular arthrosis. Based on the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A.,
Guides), he opined that appellant had 15 percent permanent impairment under Table 15-5 for
class 1 impingement syndrome rotator cuff injury and acromioclavicular joint disease taking into
account appellant’s pain and limited mobility. Examination findings revealed pain at 100
degrees forward flexion, 15 degrees internal rotation and 15 degrees extension.
In an April 13, 2011 report, an OWCP medical adviser reviewed the medical record and
Dr. Byrne’s January 28, 2011 report. He noted that Dr. Byrne did not provide the absolute extent
of the range of motion and failed to provide a percentage for abduction. The medical adviser
stated that the range of motion model was not applicable for determining appellant’s impairment.
He stated that the diagnosis-based impairment using the shoulder regional grid under Table 15-5
was applicable. The medical adviser noted that Dr. Byrne found that appellant had class 1
impairment for impingement. Based on Table 15-5 for impingement syndrome, the default value
would be three percent. The medical adviser noted that multiple diagnoses, such as appellant’s
acromioclavicular joint disease, rotator cuff tendinitis and subacromial bursitis, could not be used
when applying the shoulder regional grid for impairment purposes. Rather the predominant
impairment factor would prevail, which would allow the maximum impairment under class 1
impairment for impingement syndrome with a default impairment of three percent within a range
of one to five percent permanent impairment of the upper extremity. The medical adviser
determined that the appropriate impairment, based on Dr. Byrne’s report, was five percent
impairment of the left arm. He further opined that maximum medical improvement was reached
on January 7, 2009, one year from the date of injury.
By decision dated July 15, 2011, OWCP granted appellant a schedule award for five
percent impairment of the left upper extremity. The award covered 15.6 weeks of compensation
for the period January 7 to April 26, 2009.
LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations3 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. FECA, however, does not
specify the manner in which the percentage of loss shall be determined. The method used in
2

Id. at § 8107.

3

20 C.F.R. § 10.404.

2

making such a determination is a matter that rests within the sound discretion of OWCP.4 For
consistent results and to ensure equal justice under the law to all claimants, good administrative
practice necessitates the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.5 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.6
The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE) and Clinical Studies (GMCS).7 The net adjustment formula is
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).8
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the percentage of
impairment using the A.M.A., Guides.9
ANALYSIS
OWCP accepted that appellant sustained left shoulder sprain and upper arm, sprain rotor
cuff tendinitis, and bursae and tendon left arm. Appellant subsequently filed a claim for a
schedule award. By decision dated July 15, 2011, OWCP granted five percent permanent
impairment to the left upper extremity.
In a January 28, 2011 report, Dr. Byrne opined that appellant had 15 percent permanent
impairment. While he indicated that appellant had class 1 impairment for impingement
syndrome under Table 15-5, he provided no rationale or calculations for his impairment rating.
The Board notes that under Table 15-5 the default value for class 1 impairment for impingement
syndrome is three percent with a maximum of five percent. This percentage can be moved up or
down dependent upon grade modifiers. Dr. Byrne, however, did not explain how he determined
15 percent impairment. The Board notes that he appeared to take into account appellant’s other
primary impairing diagnoses of rotator cuff tendinitis with subacromial bursitis and
acromioclavicular arthrosis. Table 15-5, pages 401-05 of the A.M.A., Guides provides the upper
extremity impairment ratings for diagnoses of the shoulder region. Typically, one diagnosis will
adequately characterize the impairment and its impact on activities of daily living. Selection of
4

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

5

Ronald R. Kraynak, 53 ECAB 130 (2001).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
7

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

8

Id. at 521.

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).

3

the optimal diagnosis requires judgment and experience. If more than one diagnosis can be used,
the one allowing for the highest impairment rating should be used. This will generally be the
more specific diagnosis.10 Dr. Byrne calculated impairment from the primary impairing
diagnosis of impingement syndrome; the other diagnoses should not have been taken into
account. No other reports from him provided an impairment rating under the sixth edition of the
A.M.A., Guides. Dr. Walter’s rating is of limited probative value regarding permanent
impairment as he did not adequately explain how he arrived at his rating under the A.M.A.,
Guides.11
The medical adviser determined that appellant had five percent permanent impairment of
the left arm attributable to the impingement syndrome. He referred to Table 15-5 and provided
the maximum impairment of five percent permanent impairment for class 1 impairment for
impingement syndrome. The Board notes that diagnosis-based impairment is the primary
method of evaluation for the upper extremity.12 Table 15-5, page 402 of the A.M.A., Guides
gives a default impairment rating of three percent for the diagnosis of impingement syndrome
with residual symptoms, functional with normal motion. This default rating, classified as mild,
can be modified slightly based on a claimant’s functional history, physical findings and clinical
studies. The medical adviser considered appellant’s findings and opined that predominant
impairing factor of impingement syndrome would allow for the maximum impairment of five
percent. Appellant has not submitted any medical evidence consistent with the A.M.A., Guides,
indicating that he has greater than five percent impairment of the left upper extremity.
Accordingly, the Board finds that appellant has no greater than five percent impairment of the
left upper extremity.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that he has more than a five percent
impairment of the left upper extremity for which he received a schedule award.

10

A.M.A., Guides 389.

11

See I.F., Docket No. 08-2321 (issued May 21, 2009) (an opinion which is not based upon the standards adopted
by OWCP and approved by the Board as appropriate for evaluating schedule losses is of diminished probative value
in determining the extent of permanent impairment).
12

A.M.A., Guides 387 (6th ed. 2009).

4

ORDER
IT IS HEREBY ORDERED THAT the July 15, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 18, 2012
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.Q., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
El Paso, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-1794
Issued: January 11, 2016

Case Submitted on the Record

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

JURISDICTION
On September 1, 2015 appellant filed a timely appeal from a March 30, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a ratable hearing loss
warranting a schedule award.
On appeal, appellant contends that previous records indicate increased hearing loss since
the original filing date. He further contends that his hearing has become progressively worse and
requests review of his claim.

1

20 C.F.R. § 8101 et seq.

FACTUAL HISTORY
On August 25, 2014 appellant, a 40-year-old supervisory border patrol agent, filed an
occupational disease claim (Form CA-2) alleging that he developed significant hearing loss due
to varying degrees of noise exposure during the course of his federal employment. He did not
stop work.
Medical and audiological records accompanied the claim. An August 11, 2014
audiogram exhibited decibel (dBA) losses at 500, 1,000, 2,000, and 3,000 Hertz (Hz): 15, 20,
25, and 35 for the right ear and 25, 25, 30, and 35 for the left ear. At the same frequency levels,
a June 27, 2013 audiogram showed dBA losses of 5, 5, 0, and 0 for the right ear and 20, 15, 10,
and 5 for the left ear. In a June 27, 2013 Federal Occupational Health form report, Dr. Fred
Rosenberg, an osteopath specializing in preventive and occupational medicine, advised that
appellant’s audiogram showed abnormal hearing. He recommended an evaluation by a
specialist.
In a September 15, 2014 letter, OWCP notified appellant of the deficiencies of his claim
and afforded him 30 days to submit additional evidence and respond to its inquiries.
Appellant provided an employment history and noted his history of noise exposure in the
military and with the employing establishment. On September 22, 2014 the employing
establishment provided comments regarding the claim.
On February 13, 2015 OWCP referred appellant to Dr. Ronald J. Blumenfeld, a Boardcertified otolaryngologist, for a second opinion evaluation. In his March 10, 2015 report,
Dr. Blumenfeld reviewed a statement of accepted facts and the medical evidence of record, and
reported the findings of his evaluation. He reviewed the results of an audiogram obtained on
March 10, 2015 and diagnosed bilateral sensorineural hearing loss and tinnitus. Dr. Blumenfeld
opined that this hearing loss was due, all or in part, to noise exposure in appellant’s civilian
federal employment. Audiometric testing at the frequency levels of 500, 1,000, 2,000, and 3,000
Hz revealed dBA losses in the right ear of 25, 20, 20, and 20 dBAs, respectively; and dBA losses
in the left ear of 20, 15, 15, and 20 dBAs, respectively. Dr. Blumenfeld advised that the
audiogram revealed no ratable hearing loss and opined that appellant had five percent permanent
impairment on the basis that his tinnitus condition impaired his sleep. He did not recommend
hearing aids at that time, but noted that appellant would need them in the future.
On March 13, 2015 an OWCP medical adviser, Dr. Ronald H. Blum, a Board-certified
internist of professional rank, reviewed the medical evidence and audiometric testing. He opined
that appellant’s workplace noise exposure was a contributing factor to his hearing loss. Using
Dr. Blumenfeld’s findings, Dr. Blum calculated that under the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment2 (A.M.A., Guides),
appellant had zero percent monaural hearing loss in the left ear, zero percent monaural hearing
loss in the right ear, and zero percent binaural hearing loss.3 He identified the date of maximum
2

A.M.A., Guides (6th ed. 2009).

3

Id. at 252, Table 11-2.

2

medical improvement as March 10, 2015, the date of Dr. Blumenfeld’s second opinion
examination. Regarding Dr. Blumenfeld’s five percent permanent impairment rating for tinnitus,
Dr. Blum explained that as appellant did not have any ratable or measurable binaural hearing
impairment, no further impairment based on tinnitus was available under the A.M.A., Guides.
The medical adviser noted that hearing aids were not authorized.
By decision dated March 16, 2015, OWCP accepted appellant’s claim for bilateral
hearing loss due to noise exposure.
On March 24, 2015 appellant filed a claim for a schedule award (Form CA-7).
By decision dated March 30, 2015, OWCP found that appellant’s hearing loss was
unratable for schedule award purposes. It also informed him that he was not entitled to hearing
aids.
LEGAL PRECEDENT
The schedule award provision of FECA,4 and its implementing federal regulations,5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.6 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.7
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.8 Using the frequencies of 500, 1,000, 2,000, and 3,000 Hz, the losses at each
frequency are added up and averaged. Then, the fence of 25 dBAs is deducted because, as the
A.M.A., Guides point out, losses below 25 dBAs result in no impairment in the ability to hear
everyday speech under everyday conditions. The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
by five, then added to the greater loss and the total is divided by six to arrive at the amount of
binaural hearing loss. The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.9
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7

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

A.M.A., Guides 250.

9

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

3

Regarding tinnitus, the A.M.A., Guides provide that tinnitus is not a disease, but rather a
symptom that may be the result of disease or injury.10 The A.M.A., Guides state that, if tinnitus
interferes with activities of daily living (ADLs), including sleep, reading (and other tasks
requiring concentration), enjoyment of quiet recreation, and emotional well being, up to five
percent may be added to a measurable binaural hearing impairment.11 A schedule award for
tinnitus is not payable unless the medical evidence establishes that the condition caused or
contributed to a ratable hearing loss.12
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a ratable
hearing loss warranting a schedule award.
OWCP referred appellant to Dr. Blumenfeld for a second opinion evaluation. After
reviewing a statement of accepted facts and the medical evidence of record, conducting a
thorough physical evaluation, and obtaining an audiogram on March 10, 2015, Dr. Blumenfeld
diagnosed bilateral work-related sensorineural hearing loss and tinnitus. Dr. Blum, an OWCP
medical adviser, reviewed Dr. Blumenfeld’s report and concluded that appellant had no ratable
hearing loss to warrant a schedule award. By decision dated March 30, 2015, OWCP denied
appellant’s schedule award claim.
The medical adviser applied OWCP’s standards to the March 10, 2015 audiogram
performed as part of Dr. Blumenfeld’s second opinion evaluation to arrive at a binaural
impairment rating of zero percent. Test results for the frequency levels recorded at 500, 1,000,
2,000, and 3,000 Hz on the right revealed dBA losses of 25, 20, 20, and 20 dBAs respectively,
for a total of 85 dBAs. This figure, when divided by four, results in an average hearing loss of
21.25 dBAs. The average of 21.25 dBAs, when reduced by the 25-dBA fence and multiplied by
1.5, results in a zero percent monaural hearing loss of the right ear. Testing for the left ear at the
frequency levels of 500, 1,000, 2,000, and 3,000 Hz revealed dBA losses of 20, 15, 15, and 20
dBAs respectively, for a total loss of 70 dBAs; 70 dBAs divided by 4 results in an average of
17.5 dBAs, which, when reduced by the 25-dBA fence and multiplied by 1.5, results in a zero
percent monaural hearing loss of the left ear. As the monaural hearing loss rating was zero
percent for both the left and right ears, the binaural hearing loss was also zero percent. This does
not mean that appellant has no hearing loss. It means that the extent or degree of loss is
insufficient to show a practical impairment in hearing according to the A.M.A., Guides.13 The
A.M.A., Guides set a threshold for impairment and appellant’s occupational hearing loss did not
cross that threshold. Dr. Blum applied the proper standards to the March 10, 2015 audiogram.
Appellant’s hearing loss was not ratable and, thus, a schedule award is not warranted.

10

A.M.A., Guides 249.

11

Id.; see also Robert E. Cullison, 55 ECAB 570 (2004).

12

See Charles H. Potter, 39 ECAB 645 (1988).

13

See P.V., Docket No. 13-1870 (issued January 7, 2014).

4

The Board further finds that a schedule award for tinnitus is not warranted.14 FECA does
not list tinnitus in the schedule of eligible members, organs, or functions of the body. A claimant
may not directly receive a schedule award for tinnitus. Hearing loss is a covered function of the
body, so if tinnitus contributes to a ratable loss of hearing, a claimant’s schedule award will
reflect that contribution. The A.M.A., Guides provide that if tinnitus interferes with activities of
daily living, up to five percent may be added to a measurable binaural hearing impairment.15
The Board has held, however, that there is no basis for paying a schedule award for a condition
such as tinnitus unless the evidence establishes that the condition caused or contributed to a
ratable hearing loss.16 Although Dr. Blumenfeld diagnosed tinnitus, appellant’s hearing loss is
not ratable and, therefore, the Board will affirm OWCP’s March 30, 2015 decision finding that
he was not entitled to a schedule award.
On appeal, appellant contends that previous records indicate hearing loss since the
original filing date. He further contends that his hearing has gotten progressively worse.
However, the audiogram prepared for Dr. Blumenfeld, as explained, does not show a ratable
hearing loss. Furthermore, the June 27, 2013 audiogram reviewed by Dr. Rosenberg does not
show a ratable hearing loss.17 While appellant also provided an August 11, 2014 audiogram,
prepared by an audiologist, this cannot constitute probative medical evidence as it was not
certified by a physician as accurate.18 Based on the findings and reasons stated above, the Board
finds that appellant has not established that he has a ratable hearing loss and, as such, a schedule
award is not warranted.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a ratable
hearing loss warranting a schedule award.

14

Id.

15

See A.M.A., Guides 249.

16

See Juan A. Trevino, 54 ECAB 358 (2003); T.W., Docket No. 13-1967 (issued February 10, 2014); Richard
Larry Enders, 48 ECAB 184 (1996).
17

As noted, at the relevant frequencies it showed dBA losses of 5, 5, 0, and 0 for the right ear and 20, 15, 10, and
5 for the left ear.
18

See R.B., Docket No. 10-1512 (issued March 24, 2011); Joshua A. Holmes, 42 ECAB 231 (1990) (OWCP does
not have to review audiograms not certified by a physician and it is the claimant’s burden to submit a properly
certified audiogram for review if he objects to the audiogram selected by OWCP for determining the degree of
hearing loss). See also 5 U.S.C. § 8101(2) (defines the term “physician”); Charley V.B. Harley, 2 ECAB 208, 211
(1949) (medical opinion, in general, can only be given by a qualified physician).

5

ORDER
IT IS HEREBY ORDERED THAT the March 30, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 11, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
U.S. POSTAL SERVICE, BRICK POST
OFFICE, Brick, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-0917
Issued: November 10, 2021

Case Submitted on the Record

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

JURISDICTION
On May 13, 2021 appellant filed a timely appeal from a November 26, 2020 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.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $6,474.86 for which she was without fault because she concurrently received FECA
wage-loss compensation and Social Security Administration (SSA) age-related retirement benefits
without an appropriate offset for the period April 1 through October 12, 2019; and (2) whether
OWCP properly denied waiver of recovery of the overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on March 21, 2005 appellant, then a 51-year-old clerk, sustained left
shoulder impingement syndrome when she pulled flats from a case while in the performance of
duty. Appellant stopped work on March 22, 2005. On November 8, 2005 and August 24, 2012
OWCP accepted that appellant sustained recurrences of disability on May 16, June 13, August 12,
and September 27, 2005 and March 29, 2012. It paid appellant wage-loss compensation on the
supplemental rolls effective May 10, 2005.
On October 8, 2019 SSA forwarded a completed Federal Employees Retirement System
(FERS)/SSA dual benefits calculation form to OWCP. The form indicated that, beginning in
April 2019, appellant’s SSA rate with FERS was $1,415.00 and without FERS was $407.80.
OWCP, in a letter dated November 4, 2019, informed appellant that her compensation
would be offset by the portion of her SSA age-related retirement benefits attributable to her federal
service, effective November 9, 2019.
In a preliminary overpayment determination dated November 13, 2019, OWCP notified
appellant that she had received an overpayment of compensation in the amount of $6,474.86
because her wage-loss compensation benefits had not been reduced for the period April 1 through
October 12, 2019 by the portion of her SSA benefits that were attributable to her federal service.
It calculated the overpayment amount by determining the difference between h er SSA amount with
and without FERS for the stated period and adding this amount to find a total overpayment of
$6,474.86. OWCP further advised appellant of its preliminary overpayment determination that
she was without fault in the creation of the overpayment and requested that she complete an
overpayment action request form and an overpayment recovery questionnaire (Form OWCP-20),
and submit supporting financial documentation. Additionally, it notified her that she could request
a telephone conference, a final decision based on the written evidence, or a prerecoupment hearing.
OWCP allotted 30 days for appellant to respond.
On November 25, 2019 appellant completed an overpayment action request form and
requested that OWCP make a decision based on the written evidence. She claimed that she was
not aware of an offset because she was receiving SSA age-related retirement benefits and not SSA
disability benefits. In an accompanying Form OWCP-20 of even date, appellant reported monthly
income of $2,873.22, including SSA benefits of $1,279.00 and FECA compensation benefits of
$1,594.22. She reported monthly expenses which included: $1,480.00 for rent; $50.00 for water,
$120.00 for electric; $40.00 for gas; $25.00 for renter’s insurance; $240.00 for cable and internet
service; $200.00 for cell phones; $240.00 for car maintenance; $209.00 for car insurance; $250.00
for food; $150.00 for clothing; $75.00 for prescription and medical co -payments; $75.00 for
personal necessities; $200.00 for miscellaneous expenses; and $290.00 for credit card payments,
totaling $3,644.00. Appellant reported no funds. She submitted limited supporting documentation
of her income and expenses, consisting of bills for cell phone service in the amount of $656.95,
gas in the amount of $92.97, cable and internet service in the amount of $230.25, water and sewage
in the amount of $80.39, electric in the amount of $110.19, and a state tax bill for $406.72.
On March 10, 2020 OWCP received an election of benefits form signed by appellant on
January 14, 2020 in which she elected to receive Office of Personnel Management (OPM)
retirement benefits, effective March 31, 2020.
2

OWCP, by decision dated November 26, 2020, finalized the preliminary overpayment
determination that appellant had received an overpayment of compensation in the amount of
$6,474.86 for the period April 1 through October 12, 2019 for which she was not at fault, because
her FECA compensation payments were not offset by the portion of her SSA age-related retirement
benefits attributable to her federal service. It found that she was without fault in the creation of
the overpayment, but denied waiver of recovery because she did not provide financial
documentation supporting all of her reported expenses. OWCP required recovery of the
overpayment in full within 30 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.2 However, section 8116 also limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States.3 When an overpayment has been made
to an individual because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to , which the individual is
entitled.4
Section 10.421(d) of OWCP’s implementing regulations requires that it reduce the amount
of compensation by the amount of any SSA benefits that are attributable to the federal service of
the employee.5 FECA Bulletin No. 97-09 states that FECA benefits have to be adjusted for the
FERS portion of SSA benefits because the portion of the SSA benefit earned as a federal employee
is part of the FERS retirement package, and the receipt of FECA benefits and federal retirement
concurrently is a prohibited dual benefit.6
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$6,474.86 for which he was without fault, because she concurrently received FECA wage -loss
compensation and SSA age-related retirement benefits without an appropriate offset for the period
April 1 through October 12, 2019.
In its November 20, 2020 decision, OWCP found that an overpayment of compensation
was created for the period April 1 through October 12, 2019. The overpayment was based on the
evidence received from SSA with respect to retirement benefits paid to appellant. As noted, a
claimant cannot receive both compensation for wage loss and SSA age-related retirement benefits
2

Id. at § 8102(a).

3

Id. at § 8116.

4

Id. at § 8129(a).

5

20 C.F.R. § 10.421(d); see R.R., Docket No. 19-0104 (issued March 9, 2020); T.B., Docket No. 18-1449 (issued
March 19, 2019); L.J., 59 ECAB 264 (2007).
6

FECA Bulletin No. 97-09 (February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).

3

attributable to federal service for the same period. 7 The information provided by SSA established
that appellant received SSA age-related retirement benefits that were attributable to federal service
beginning April 1, 2019. OWCP, however, neglected to offset her FECA benefits until
October 12, 2019. Accordingly, the Board finds that it properly determined that appellant received
an overpayment of wage-loss compensation for the period April 1 through October 12, 2019.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience. 8
Recovery of an overpayment would defeat the purpose of FECA if such recovery would
cause hardship because the beneficiary from whom OWCP seeks recovery needs substantially all
of his or her current income (including compensation benefits) to meet current ordinary and
necessary living expenses and, also, if the beneficiary’s assets do not exceed a specified amount
as determined by OWCP. 9 Additionally, recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship in attempting to repay the debt or when an individual, in reliance on such
payment or on notice that such payments would be made, gives up a valuable right or changes his
or her position for the worse. 10
OWCP’s regulations provide that the individual who received the overpayment is
responsible for providing information about income, expenses, and assets as specified by OWCP.
This information is needed to determine whether or not recovery of an overpayment would defeat
the purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary. 11 Failure to submit the requested information
within 30 days of the request shall result in a denial of waiver of recovery, and no further request
for waiver shall be considered until the requested information is furnished. 12

7

5 U.S.C. § 8116(d)(2); see W.C., Docket No. 20-1241 (issued February 9, 2021); R.D., Docket No. 19-1598
(issued April 17, 2020); C.M., Docket No. 19-1451 (issued March 4, 2020); L.W., Docket No. 19-0787 (issued
October 23, 2019); J.T., Docket No. 18-1791 (issued May 17, 2019).
8

5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see A.S., Docket No. 17-0606 (issued
December 21, 2017).
9

20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4(a)(2) (September 2020).
10

Id. at § 10.437(a)(b).

11

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

12

Id. at § 10.438(b).

4

ANALYSIS -- ISSUE 2
The Board further finds that OWCP properly denied waiver of recovery of the
overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience. 13
The Board finds that appellant has not established that recovery of the overpayment would
defeat the purpose of FECA because she has not provided the necessary supporting financial
information. Appellant submitted a completed Form OWCP-20 on November 25, 2019 and noted
a total monthly income of $2,873.22 and total monthly expenses of $3,644.00. However, she only
submitted limited supporting financial documentation of her cell phone, utility, and cable bills,
and a state tax bill. No other documentation supporting her purported income or expenses was
submitted. Although appellant had been advised to submit documentation substantiating all her
income and expenses in OWCP’s preliminary overpayment determination dated November 13,
2019, she failed to provide sufficient documentation of her income and expenses as required by
section 10.438 of its regulations. 14 OWCP, therefore, did not have the financial information
necessary to determine if appellant needed substantially all of her current income to m eet current
ordinary and necessary living expenses. 15
Appellant also has not established that recovery of the overpayment would be against
equity and good conscience because she has not shown, for the reasons noted above, that she would
experience severe financial hardship in attempting to repay the debt or that she relinquished a
valuable right or changed her position for the worse in reliance on the payment, which created the
overpayment. 16 Consequently, as she did not submit the information required under section 10.438
of OWCP’s regulations, which was necessary to determine her eligibility for waiver, OWCP
properly denied waiver of recovery of the overpayment. 17
Because appellant has not established that recovery of the overpayment wo uld defeat the
purpose of FECA or be against equity and good conscience, she has failed to establish that OWCP
acted improperly by denying waiver of recovery of the $6,474.86 overpayment. 18

13

Id. at § 10.436.

14

A.W., Docket No. 20-1210 (issued June 3, 2021); P.B., Docket No. 20-0862 (issued November 25,
2020); R.W., Docket No. 18-1059 (issued February 6, 2019).
15

Supra notes 11 and 14.

16

See D.B., Docket No. 21-0009 (issued June 7, 2021); P.B., supra note 14; G.G., Docket No. 19-0684 (issued
December 23, 2019); V.T., Docket No. 18-0628 (issued October 25, 2018).
17

See D.B., id.; G.G., id.; A.F., Docket No. 19-0054 (issued June 12, 2019); see S.B., Docket No. 16-1795 (issued
March 2, 2017).
18

See A.W., supra note 14; S.W., Docket No. 20-0363 (issued November 23, 2020); B.C., Docket No. 19-0629
(issued June 2, 2020).

5

CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$6,474.86 for which he was without fault, because she concurrently received FECA wage -loss
compensation and SSA age-related retirement benefits without an appropriate offset for the period
April 1 through October 12, 2019. The Board further finds that OWCP properly denied waiver of
recovery of the overpayment. 19
ORDER
IT IS HEREBY ORDERED THAT the November 26, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 10, 2021
Washington, DC

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

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

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

19

With respect to the recovery of an overpayment, the Board’s jurisdiction is limited to those cases where OWCP
seeks recovery from continuing compensation benefits. D.J., Docket No. 19-1163 (issued September 22, 2020); J.R.,
Docket No. 19-1418 (issued March 4, 2020). As appellant was not in receipt of continuing wage-loss compensation
at the time of OWCP’s overpayment determination, the Board does not have jurisdiction over the method of recovery
of the overpayment in this case. See id.; Miguel A. Muniz, 54 ECAB 217 (2002); Lorenzo Rodriguez, 51 ECAB 295
(2000); 20 C.F.R. § 10.441.

6